Fundamentals of Legal Research
Adam J. McKee, Ph.D.
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Primary versus Secondary Sources
One of the most important distinctions in the law that the novice scholar can make is the difference between primary sources of law and secondary sources of law. Because of our Common Law heritage, the courts United States consider the written opinions of judges in appellate cases as primary sources of law. The second important primary source of law are statutes passed by legislative assemblies, such as Congress.
At first glance, there may seem to be a clear distinction between court cases and statutes. After all, they are distinctly different sources of law that are derived by different institutions using different methods. It must be realized that there is an interplay between statutes and cases, and that this complex relationship can be confusing.
Some areas of law are determined almost wholly by case law, such as the law of criminal procedure. Other areas of law are determined almost wholly by statute, such as the substantive criminal law. Some areas of law are an admixture of the two. In every area of law, there are at least some influences of both.
From the constitutional perspective, Congress has the power to make laws. In highly technical matters, Congress often chooses to delegate these powers to administrative agencies of the federal government that have the expertise to regulate these technical areas. The subsequent regulations derived from these delegated powers have the force of laws, and are thus considered primary sources of law. Many of these federal agencies have quasi-judicial powers, and are thus authorized to hear cases involving violations of these rules.
Characteristics of Primary Sources
Primary sources usually represent the initial statement of a law. A potential drawback to these early forms is that they are published chronologically. This means that they are published in the order that the laws were made. Statutes published in the order passed by the legislature are known as session laws. This presents a problem for the legal researcher; most of the time, researchers are interested in finding laws based on the subject of the law. When statutes are arranged by subject matter and index, the result is referred to as a code. Cases do not lend themselves well to a process similar to the codification of statues, and remain published in chronological order. There are, however, finding tools to aid in the location of cases that cover a particular subject matter.
Another characteristic of primary sources of law is that they are usually published in both official versions and commercial versions. The version published by the government is usually the official version, and it is usually a legal requirement that the official version be cited in court documents. The primary reasons that legal researchers resort to commercial publications is the speed at which they are made available, and the handy tools added by the publisher to make legal research easier.
Some secondary resources, especially textbooks, will attempt to treat both state and federal laws in a given subject area. Primary sources, on the other hand, tend to be very specific in the jurisdiction that is covered. In other words, you will examine one resource for federal laws and another completely different resource to discover the parallel law for your state. In some cases, you may need to research both state and federal laws because both apply to the same factual circumstances. For example, let us say that you are a police officer concerned with the roadside search of vehicles that you believe to contain contraband (such as illicit drugs). This is a matter of procedural law, and the most likely source for rules governing searches will be court cases interpreting constitutional provisions. As nearly every criminal justice student knows, the Fourth Amendment of the United States Constitution regulates searches. To find out how the fourth amendment has been interpreted to apply to roadside searches of automobiles, you will need to consult United States Supreme Court Cases. In addition, every state has its own constitution, and each state’s Supreme Court interprets the provisions of those constitutions. There may be procedural rules promulgated by the state that need to be considered.
What is With All These Citations?
By now, you may have noticed that, in law, there is a constant focus on citations. Citations are a shorthand way of telling the reader exactly where something comes from. As you can imagine, knowing the source of a statement about the law can be very important. Everyone who has ever been an English student understands the importance of quotation marks. Quotation marks set off what a particular person said, and keeps comments made by the writer separate from the person the writer is quoting. Quotation marks serve the same function in legal writing (as well as other types of academic writing).
Case law provides some of the best examples of the use of citations in legal writing. After all, who knows legal writing better than judges do? To the novice reading cases for the first time, it can seem like there is a citation after every sentence, and that the law as complicated, ponderous, and slow. Experienced legal readers will unconsciously remove all of this extra material, and the case will flow in their minds like any other prose. In a common law country like the United States, these citations point back to ideas and legal precedents found in previously decided cases. The system of citations provides important information as to why the judges ruled as they did. In practice, legal professionals must provide the authority for statements they make about a particular case. No matter how brilliant a lawyer is, the courts are seldom interested in personal opinions. Nothing a lawyer says will hold sway in court if competent legal authority does not back it up. For these reasons, citations are critical in both the academic and applied aspects of the law.
The most common form of a citation in legal writing is known as a citation sentence (this is opposed to the parenthetical system used in styles like that of the APA). The usual form of a citation sentence is to provide information about a source, followed by a period. If more than two sources provide information about the preceding sentence, then a semicolon separates the sources. The formatting is specific to the type of source being cited. All of this information can be very detailed and competency with it takes practice. The most common reference for citing legal materials is known as The Blue Book: A Uniform System of Citation. Some basic conventions to remember are:
• Always cite the official source of law
• Use the accepted abbreviations for reporters, codes, and so forth
• When quotations are drawn for a case, provide a pinpoint citation (the exact page number)
• Always include the year that a case was decided in parentheses
Bluebook: Introductory Signals
Introductory signals are words or abbreviations that introduce a citation sentence in legal writing. As one would expect by the use of the word signal, their purpose is to alert the reader to something. Because they are used in a citation sentence (or parenthetically in the APA style), they are signaling something about the cited authority to the reader. The absence of any signal in a citation sentence suggests that the proposition offered in the document reflects precisely the rule of law, or merely identifies an authority cited in the text. Rule 1.2 of the Bluebook suggests the following signals (set off in italics) be used to indicate that the cited authority supports an assertion:
E.g. This signal tells the reader that there are many possible citations for the point being made, but it would be unnecessary or unproductive to list them all. The proffered citation is merely an example.
See. This signal directs the reader to that there is an inferential step between the proposition in the document and the cited authority. In other words, the citing authority does not mirror the proposition precisely, but follows logically from it.
See also. This signal alerts the reader that the citation to follow offers additional authority to the proposition presented in the text.
Cf. this signal is used to indicate that the cited authority offers material that is analogous the proposition in the text.
Compare. Shows that a comparison of authorities will help clarify a point made in the text.
Contra. This signal is used to alert the reader that the cited source states the opposite of the proposition in the text.
But see. This signal us used to alert the reader that the cited authority supports a position that is contrary to the proposition offered in the text.
See generally. This signal is used to indicate to the reader that the cited authority provides background information about the proposition presented in the text.
Modification History File Created: 08/08/2018 Last Modified: 06/13/2019
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