Fundamentals of Legal Research
Adam J. McKee, Ph.D.
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Analysis of Codes and Regulations
The first question that must be asked before it can be determined if a code or regulation applies to a given situation is one of jurisdiction. The Federal Rules of Criminal Procedure obviously will not hold sway in a state criminal court. When dealing with law, it is important to remember that the idea of jurisdiction includes the idea of subject matter jurisdiction. For example, it would do no good to consider the implications of a particular rule of the Federal Rules of Civil Procedure in a criminal matter. After irrelevant laws have been set aside, and relevant laws have been identified, the next step is to determine the meaning of the statutory provisions. Given the ample jargon, acronyms, and “legalese” used in statutes and regulations, this is sometimes far from easy.
The obvious first step is to read the statute carefully and completely. Often, the first element of a particular statute will be a definition section. This is where the legislature spells out the precise meaning of many of the terms that occur later in the statute or rule. Whether you are dealing with a substantive law or a procedural rule, outlining the law is often a valuable tool. Careful outlining can prevent the researcher from missing important provisions of the law that might otherwise be overlooked.
In law, there are often certain statutory requirements that must be met before the statute comes into play. Such requirements often attach to both civil and criminal liability. To make sense of these, it is often necessary to pay particular attention to “connectors” and “qualifiers.” Be on the lookout for words and phrases like shall, and, or, except, unless, and provided that. These provide critical information as to when a statute will apply, and when it will not.
Perhaps one of the most helpful tools available to the legal researcher analyzing statutes and regulations are the annotations that are found in commercially published books. These provide frequently updated references to case law where the judiciary has interpreted a statute or regulation. Not only do such cases provide insight, they provide binding statements of the law. Recall that under the doctrine of stare decisis, the courts are bound to follow precedence. This binding authority also applies to the interpretation of language. That is, if the Supreme Court defines a statutory term in a particular way, all lower courts in that jurisdiction are required to follow that interpretation when deciding subsequent cases.
Any analysis of a particular code section or a regulation should include a careful examination of other code sections and regulations that are referenced. It is a very common legislative practice to use a term as it is defined in a completely different section of the code. To understand the statutory definition of that them, the legal researcher must look up that code section. Even of a definition seems perfectly obvious, the prudent researcher will take the time to examine any statutes, rules, or case law that may provide an alternate definition. Legal treatises and dictionaries are an excellent resource, but if a statute or case defines a term, the primary source is the one that must prevail. In any area of law, there may be very general statements of the law mixed with very specific statements of particulars. When a very general provision seems to be at odds with a very specific provision, there is a presumption that the specific provision controls.
Recall that the law is said to be dynamic because it changes frequently. Such changes can be due to legislative enactments and judicial decisions. When attempting to apply the law to a particular set of factual circumstances, it is important to consider whether a particular statement of the law is still “good law.” This can be especially confusing concerning the interplay between statutory law and case law. Statutes can specify a certain rule, the courts can decide cases that interpret that law, and then the Legislature can completely change the law. Short of a Constitutional Amendment, constitutional law remains as stated by the Supreme Court unless the Supreme Court overrules its previous decisions. If the issue is not constitutional and the statute was passed after the case was decided, then it is very likely that the statute controls. When this occurs, case annotations will usually notify that the decision was made “under prior law.” Obviously, if the Court’s decision is interpreting a statute that has not changed since the decision, then the case law controls.
Another potentially important tool in interpreting statutes (especially when a statute is recent and very little case law exists) is to review the legislative history. The legislative history helps the researcher understand the purpose the legislature had in mind when the law was passed.
Only after identifying relevant statutes, outlining the statutory requirements, determining the meaning of those requirements, and examining any relevant case law is the legal researcher ready to reach a conclusion about what the law actually is in a given factual situation.
Modification History File Created: 08/08/2018 Last Modified: 06/13/2019
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