Legal Research

Chapter 1
Understanding the Basics of the Law

Trying to research the law can be a daunting task. Fortunately, online research has made it so that’s no longer the case. Today, many people find it easy to do their own legal research when they need to resolve a private dispute, understand and work with a legal professional, or advance an academic or professional career. Often, legal research can be done in the comfort of a home or office.

In this book, we’ll help you find the resources you need to conduct legal research and explain the steps you’ll take to ensure you’re using the correct law. But before we get started, it will help to have a basic understanding of how the law works. In this chapter, we’ll cover:

• what “the law” is
• the sources of case law, statutory law, and administrative law
• the differences between state and federal law, and
• the structure of the U.S. courts.

This framework will help you understand how to conduct legal research, help you draft legal questions, and most importantly, find the answers you need.

What Is the Law?

Most of us don’t spend much time thinking about what “the law” means. In the real world, we get along fine without this knowledge. No one needs to see a written law to know it’s a crime to steal or destroy someone else’s property. 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. But when that happens, we need to know the rules of the game.

The first step is understanding where particular types of law come from because it makes it easier to find the law that applies to a particular problem. So that’s where we’ll start.

That being said, knowing the law that applies in your matter doesn’t mean it always functions predictably (although that’s the goal). After all, prosecutors choose whether to bring charges against defendants, so committing a crime doesn’t necessarily lead to prosecution. And while we might be entitled to a government service—a Social Security payment, for example—that doesn’t help much when the Social Security Administration denies a claim. The reality is, laws are applied by real people in the real world, so things don’t always play out as perfectly as we might want or expect. Even so, successful litigation starts with solid preparation—and the first step is finding the law that applies to your case.

Sources of Law

You won’t find the law in a single set of books. Instead, it is made up of numerous separate collections, and one or more might apply to any given situation. 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. It also describes the authority retained by the federal government and gives the remaining power to the states. The amendments guarantee citizens’ fundamental rights, such as the right to free speech and to bear arms, and limit what the government can do.
• Federal statutes. As we’ll explain below, Congress frequently passes new laws that are compiled in code books. These written laws are called statutes.
• Federal cases. Federal courts decide cases about federal law and explain how to interpret federal statutes (how a statute should be applied in certain situations isn’t always clear—or even anticipated). They also hear cases between two parties that are from different states.
• Federal administrative regulations. The legislature cannot 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, agencies like the Equal Employment Opportunity Commission, the Internal Revenue Service, and the Environmental Protection Agency are created by the U.S. Congress and are part of and overseen by the executive branch. They issue regulations (law) using the authority granted by the enabling statute. Regulations are part of federal administrative law.

• • State constitutions. Like the federal government, state governments have constitutions that form the basis of their legal structure.
  • State statutes. Like Congress, state legislatures pass statutes, which constitute state statutory law. While federal laws apply everywhere, these laws apply only within the state.
  • State cases. State courts decide cases about state law.
  • State administrative regulations. State legislatures create agencies to regulate particular areas of law. The agencies write and enforce regulations that constitute state administrative law.
  • Local ordinances. Local governments pass ordinances that become 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, if you want to sue your automobile mechanic because you got into an accident after he failed to fix your brakes properly, you’d turn to state statutory and case law. You won’t need to look at the federal Constitution or local ordinances. We’ll explain more about these sources of law below.

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 the various branches of government what authority they have to create new law. As we’ll explain below, legislatures and judges create law, but that law cannot conflict with the constitution.

Statutes: Legislative-Made Law

What most of us tend to think of when we think of the law are the acts passed by our national 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”). As new bills are passed, existing statutes are amended, or the new laws are incorporated into the existing code books. Collectively, they create what are known as codes or statutes.

Both federal and state statutes are usually grouped together by subject matter. For example, the California Family Code includes most of the laws that affect families facing divorce, legal separation, and child custody disputes. At the same time, Title 12 of the Connecticut code deals with state taxation. This organizational system makes finding relevant materials much easier when it’s time to do legal research. We’ll discuss how to use and understand statutes in greater detail in Chapter 5.

Common Law: Judicial Interpretation

While statutes are an essential part of our law, they actually make up a small part of it. Because we don’t always agree on what statutes or the Constitution 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.

For example, in a child custody case, a law might say that a judge should decide custody with the “best interests” of the child in mind. The child’s mother might think that means living with her with occasional visits to the child’s father, whereas the father might feel the child should live part-time with each parent. On each side, the parties have a different interpretation of the meaning of “best interests” and how the law applies to them. In this situation, a judge will look at case law to see how previous judges handled factual situations similar to the one before the judge. Doing so will help the judge determine what “best interests” means in light of the circumstances of the people involved in the lawsuit.

So how do these cases come about? Judges sometimes create a document called an “opinion” that explains the judge’s rationale. Judicial opinions form what is known as “common law” or “case law.” It’s a judge’s view of what the statute means when applied to the particular facts of the case before the court.

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. Instead, the courts publish opinions in books called “reports” or “reporters.” Federal and state courts have separate sets of reporters which organize opinions, or “cases,” by date.

Because common law is part of the law, judges have to consider not only what statutes say but what judges before them have said on the same issue. In other words, court opinions serve as authority or “precedent” that other judges are usually required to consider when deciding similar cases. The reasoning in previous cases that a judge is required to follow is called “binding” authority.

But courts are arranged in a hierarchal 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 more about how to do that in Chapter 7.

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

Both the federal and many state governments have administrative agencies that work in specific areas of law—for example, the U.S. Department of Labor oversees the wages and working conditions of the nation’s workers. These agencies are created by Congress and state lawmakers, but are under the leadership of an executive branch—either the president or a governor. The agencies are given the authority to adopt regulations that specify how certain laws will be carried out. While Congress passes laws that provide the framework for how the law is implemented (an enabling statute), regulations often provide detail, frequently based on the experience and feedback from citizens who have questions about the law. For example, while a mileage reimbursement rate is part of federal law, the amount of that rate is set each year by the IRS.

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 may have come across local ordinances if you have needed a building permit or have questioned zoning laws, for example. Often, these ordinances are enforced and regulated by the bodies that create them, and 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 Versus Federal Law

The law comes from more than one source. The primary sources are state law and federal law, though as we’ve explained, local bodies regulate some areas. Describing the difference between state and federal law could send us into a long-winded explanation of constitutional principles, but we’ll try and keep it simple.

The main legal text that creates federal law is the U.S. Constitution. The Constitution lays out several specific areas that the federal government regulates fully, without state intervention—for example, maritime law. Then there are areas the federal government is allowed to regulate. And finally, the Constitution says that states can regulate areas that the federal government doesn’t regulate.

Of course, what falls within each realm has resulted in a lot of judicial interpretation and opinion, and there are many areas that are regulated by both state and federal law. The general principle, however, is that certain areas—federal taxes, immigration, and bankruptcy, for example—are governed solely by federal law. The areas the federal government doesn’t regulate—such as landlord-tenant law—are primarily regulated by the states.

Issues Covered by State Law

Each state has its own set of statutes, as well as common law. Most states have laws regulating 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 disclosure of lead-based paint hazards in residential rentals), federal law will not cover 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 and the Bill of Rights, as well as the topics that Congress is specifically authorized to address under the Constitution, such as the regulation of 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 is primarily true because the Constitution authorizes Congress to spend money for the general welfare, and it creates programs under which federal funds are offered to state governments under certain conditions. (Usually, states must meet conditions and contribute financially too.) A good general rule is that if federal funds are involved, at least one element of federal law is at play.

When states participate in one of these programs, typically, federal law gives some latitude in how the program is conducted, so states pass their own laws and regulations to govern the operation. Of course, courts interpret these statutes and regulations to create common law on the issue.

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 that is affected by both federal and state law, you might have to look to both state and federal law resources to get a firm handle on your problem. We’ll explain more about how to do that in Chapter 4.

The Court System

As explained above, when drafting opinions that interpret the law, judges are bound by other judges’ opinions. But judges don’t have to follow every prior opinion interpreting a statute. Courts are arranged in a certain hierarchy, which makes judges bound by the decisions of only those higher up in the hierarchy.

How Courts Are Structured

Both state and federal courts are structured similarly. If you wish to bring a lawsuit, you will usually file a suit in the trial court. This might go by one of several different names—for example, the superior court, the municipal court, or in New York (confusingly enough), the supreme court. But the function of this first court is the same: Everything up to and including a trial will happen here. For the most part, trial courts do not issue opinions that other courts are required to follow.

After the trial court, the next level up is called the appellate court. If you reach a final resolution in the trial court—for example, the judge rules against you—and you believe the decision is wrong, you have the right to appeal the decision. In most instances, the appellate court’s role isn’t to start your trial over, hearing the evidence again. Instead, it will look at what the trial court did and decide whether it made any mistakes. Appellate courts often issue opinions, and those opinions are binding on the trial courts below them within the state.

The highest court is usually called the supreme court. In states without an intermediate appellate court, appeals go straight to the supreme court of that state.

The supreme court is another appellate court and will usually only decide whether the court below it correctly interpreted the law and applied it to the facts; it won’t gather new evidence or start things over. Except in certain kinds of cases—for example, death penalty cases— most supreme courts get to decide which cases they will hear. If you don’t agree with the appellate court’s decision, in most cases, you can ask the supreme court to hear your case. If it refuses, the appellate court’s ruling stands.

There are all kinds of exceptions to this general structure. For example, in many states, claims under a certain amount are heard in small claims court, not the trial court. The trial court might act as the appellate court and can review the entire case, like new. (This is called de novo review.) Or, if you are filing for bankruptcy and your creditors challenge it, the federal bankruptcy court will decide the dispute. We can’t point out every exception to you, so you might have to do some research to figure out the procedure in the applicable court system. We’ll explain how to do that in Chapter 2.

Federal Courts

If you have a lawsuit that involves a federal issue or is otherwise within the court’s jurisdiction—meaning it covers an area that federal courts are allowed to hear—you can file it in the federal trial court, called the U.S. District Court. You can’t file your lawsuit in any district court, however. As we’ll explain in Chapter 9, there are rules to prevent you from showing up at a Nebraska courthouse if you and the defendant both live in Oregon, and the incident that resulted in a lawsuit took place in Oregon. There is at least one district court in every state, but often more, breaking the state into regions. District courts don’t usually issue “published” opinions (opinions considered binding on other courts), though other courts might take these decisions into account.

Above the district court is the appellate court, called the circuit court in the federal system. There are 13 circuits, divided by area of the country. Most of the circuits are numbered, except for the DC Circuit and the Federal Circuit. The First through Eleventh Circuits all cover specific parts of the United States, while the DC and Federal Circuits are based in Washington, DC. The DC Circuit hears appeals from cases in the District of Columbia, while the Federal Circuit deals with nationwide claims based on particular areas of law, including international trade, government contracts, patents, trademarks, specific money claims against the United States government, federal personnel, and veterans’ benefits.

The circuit courts’ decisions are binding on all the district courts that are part of that circuit, but not on other circuit courts or the district courts in those other circuits. For example, the Fifth Circuit includes Texas, Louisiana, and Mississippi. If the Fifth Circuit issues a ruling, it will bind all district courts in those three states; however, it will not be binding on the Eleventh Circuit. The Eleventh Circuit might consider it “persuasive,” meaning it might find the logic compelling and might consider it to craft its own decisions. But it is not bound to do so.

At the very top of the hierarchy in the federal court system is the U.S. Supreme Court. Most of us have heard of the Supreme Court, and maybe even some of the major cases that have come out of it, like Roe v. Wade, Brown v. Board of Education, and Bush v. Gore. The Supreme Court has nine members appointed for an unlimited term by the United States president. As appointees who don’t have to worry about reelection, the Supreme Court is supposed to be less politically biased than the legislature or president.

Except for “appeals of right“—those situations in which parties have an automatic right to Supreme Court review—the Court chooses which cases it will hear. Very frequently, the Court will select cases involving conflicting opinions in the circuit courts. So if the Ninth Circuit says it’s okay to do something and the First Circuit says it isn’t, the Supreme Court might issue a rule that will bind both. All federal courts must follow the Supreme Court’s decision.

State Courts

Most state court systems follow a similar structure to the federal system. Usually, the only state court opinions published are those issued by appellate courts, including the state’s supreme court.

It’s important to recognize that state court opinions don’t generally bind federal courts, and vice versa. This makes sense. For the most part, federal courts are dealing with federal law issues, and state courts are dealing with state law issues. So neither judicial system tells the other how to interpret its own laws.

But this gets tricky when state or federal court systems must interpret each other’s laws. This happens, for example, when both state and federal issues are part of a single lawsuit. Let’s say you believe your employer discriminated against you based on your race. You might file a lawsuit alleging that the employer violated federal and state antidiscrimination laws. But it wouldn’t make sense to have two different cases, in two different courts, with two different judges. So you are permitted to bring both claims in one place.

If you choose state court, the state court will have to apply federal law to decide whether your rights under federal law have been violated. If there’s an issue of federal law that the judge must interpret, the judge will turn to federal law to find the answer, not state law. In that case, the judge is bound by federal law.