Introduction by Research One
The following article on US primary research material is current as at 3 March 2003. For reasons of space, footnotes that appear in the original version have been omitted. Links have been inserted by Research One. The original formatting of the article has been adopted as far as possible. The views of the authors do not necessarily reflect the views of Research One.
Gary D Meyers and Nerida Gilbert, 'Primary Sources: A "Not-So-Anonymous" Review of US Legal Research Materials and Sources' (2003) 11(1) Australian Law Librarian 12 (reprinted with permission).
(Use of this article is subject to our usual terms and
conditions.)
INTRODUCTION
As the title suggests, this article is intended to provide a broad
overview of the primary sources of information for researchers interested in the
US legal system. We confine our review largely to federal law and federal
research sources, though it should be noted that many of the sources of
information identified in this paper have their counterparts at the state level.
Moreover, as we discuss access to these sources (particularly, electronic
access), those points of access may also include access to state law, cases, and
commentary.
Our intent is essentially twofold: first, to identify those
research sources which are essential for those interested primarily in US
statutory law; and second, in an age when the volume of materials is increasing
in tandem with their cost, to identify electronic means of accessing those
research sources. We begin, however, with a brief description of the US judicial
system to help set our discussion in context.
THE US LEGAL SYSTEM
Federal courts
Given their shared heritage as former
British colonies with legal systems founded in the tradition of English common
law and the fact that both countries are federations (like Canada but unlike New
Zealand which is a unitary state), it should not be surprising that the US and
Australian legal systems share many similarities. There are also some
significant differences. Moreover, given that the Australian legal system is
often referred to as a 'Washminster' system, Australia having borrowed heavily
from both the UK legal system and the US Constitution in drafting its own
constitution, those similarities are arguably systemic. Thus, the judicial
system in the US looks much like that of the judicial system in Australia,
containing both state and federal courts of general and limited jurisdiction and
having trial and appellate functions (typically separated at both the state and
federal level in the US). Many Indian reservations in the US also have their own
tribal courts, with jurisdiction that is distinct from that of the states in
which they are situated.
There are three levels of federal courts in the
US (along with a very few specialty courts, such as the Federal Bankruptcy
Court, US Court of International Trade, and the US Claims Court, which hears
monetary claims against the US). The United States Supreme Court is in fact created by the US
Constitution. Article III of the US Constitution provides that, '[t]he judicial
Power of the United States shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and establish'. The
US Supreme Court is the United States' highest court and has both original
(limited by the Constitution to certain matters) and appellate jurisdiction.
That appellate jurisdiction extends to reviewing the decisions of both lower
federal courts and to the decisions of state supreme courts (which unlike
Australian supreme courts are almost always limited to appellate jurisdiction).
Federal Judges in the US have life tenure, and there is no mandatory retirement
age.
The principal 'inferior' federal courts that Congress has ordained
to establish are the United States District Courts and the United States Courts
of Appeals. Unlike the case in Australia, these courts are established
geographically. Every state has at least one US District Court for that state
while in some states, US District Courts are distributed by region within the
state. Similarly, the US Courts of Appeals are divided into circuits covering
regions within the US. The US Capitol, Washington DC, has its own District Court
as well as its own US Court of Appeals. US District Courts are courts of general
jurisdiction hearing both criminal and civil matters (including administrative
matters involving private, state, or municipal plaintiffs and federal agencies)
that are matters of federal jurisdiction. US Courts of Appeals, sitting in
panels of three judges, hear only appeals from District Court decisions within
their assigned circuits (regions).
As noted, the US Supreme Court is the final arbiter of federal and
constitutional questions of law. And as observed, its jurisdiction is almost
exclusively appellate. Typically, a determination to review a decision of a
Circuit Court of Appeals or state supreme court is made via a writ of
certiorari. The US Supreme Court
receives between 1500 and 2000 such requests each year but generally, grants
around 10% of those requests, hearing perhaps 130-150 cases each year. The Court
has no advisory jurisdiction; it is, however, possible for the Court to exercise
its 'removal' jurisdiction and hear cases directly from a US District Court or
state supreme court, thereby bypassing either or both lower federal
courts.
Decisions of the federal courts are usually reported, including
trial court decisions by US District Courts (unlike the overwhelming majority of
state trial court decisions). The official reporter for the District Courts is
Federal Supplement (Fed Supp), the official reporter for Courts of
Appeals is the Federal Reporter (F or now, F 2d), and the official
reporter for the Supreme Court since 1875 is United States Reports (US).
Additionally, there are three unofficial reporters for the US Supreme Court, the oldest being Lawyer's
Edition/Lawyer's Edition 2d (L ED/L Ed 2d) operating since 1790, followed by
Supreme Court Reporter (S Ct) since 1882, and United States Law Week
since 1933 (USLW).
A brief note on state
courts
State courts in the US are organised similarly to federal
courts. There is always at least one court of general jurisdiction, i.e. a trial
court and an appellate court. Typically, the trial court has a superior and
inferior court (which hears lesser criminal matters or civil cases up to a
specified damages amount), and the court of general jurisdiction may be
comprised of specified divisions for example, juvenile matters or family
matters. It is becoming more common for states to have intermediate appellate
courts as well, thereby reducing the load of the highest state court, which in
all jurisdictions except New York is the State Supreme Court. Trial court
decisions are rarely reported, rather it is the decisions of State Supreme
Courts and intermediate courts of appeals that are reported in each state. There
are official reporters for each state, however, there is a system of regional
reporters covering decisions from a number of states, which are also recognised
as official reporters.
ESSENTIAL RESEARCH SOURCES
The United States Code and the US Code of Federal
Regulations
The essential starting point for research on US laws is
the United States Code (USC), or more usefully, the United
States Code Annotated (USCA), and the Code of Federal
Regulations (CFR) which compiles the administrative rules adopted by
executive agencies as directed by statute. Every law passed by the US Congress
and signed by the President is given a Public Law number corresponding to the
particular sitting of Congress, followed by a number. Thus the first law passed
by the 110th Congress would be given the number 110-1. These laws are then
incorporated into the USC. The USC is organised by 'Titles;'
beginning with Title 1 (General Provisions - The Congress) and running
alphabetically through subject matter to Title 50 (War and National Defense).
Title 1 is preceded by volumes dealing with the US Constitution, arranged by
'Articles' in the Constitution and the various amendments to the Constitution.
Title 50 is followed by Statutory Supplements, arranged by year, prior to their
codification or publication in new bound volumes. The USCA tracks this
organisation exactly. Unlike the case in Australia where statutory reprints are
irregular, these volumes (Titles) are republished regularly, thus if a
particular statute has been amended, the amended version is reflected in the
USC and one does not need to assemble a series of Acts to determine the
current state of the law.
The beauty of the USCA is its
annotations. These general annotations for each major act include: cross
references to other laws (by title and section of the USC) which
reference the applicable title and section under library references such its
legal forms, commentaries, and texts; and on a section by section basis,
historical and statutory notes which effectively provide a cumulative
legislative history for the particular act; a list of all amendments over time,
cross references to other laws, library reference to applicable sections of the
CFR, legal forms, digests and encyclopedias and a list of law review and
commentary articles, and finally, notes of decisions construing the particular
section listed by keywords such as constitutionality, treaties, Indian lands.
(Do not forget to check the 'pocket part' at the end of each volume which
supplements the information in the bound volume, i.e. provides an updated list
of judicial decisions construing the various sections of that title.)
The
CFR is also important. (Regulations adopted by the various executive
agencies (i.e. Cabinet Departments and their various sub-components) in the US
are equally important.) Much of the federal civil litigation in the US is
concerned with agency interpretations of their own enabling laws, i.e.
regulations adopted pursuant to particular laws. Thus the 'Regs' are critical to
understanding the 'law.' However, as indicated above, the USCA will
direct the practitioner/researcher to the applicable regulations and the
annotations will direct the practitioner/researcher to the judicial
interpretation of those regulations. As will be discussed below, the CFR
is also available electronically.
The Congressional Record and
'legislative history'
There are two other research sources for
federal law which are important. The first is the Congressional Record
(daily and weekly versions). The Congressional Record is not only a
record of daily happenings in Congress analogous to Hansard; it also
provides information regarding the adoption of regulations and administrative
rules/agency rulings. Typically final regulations or actions, such as the
adoption of an environmental impact statement (EIS) are preceded by drafts with
opportunity for comment before adoption and publication in the Congressional
Record. Specialised practitioners will want to track this activity and the
most useful means of doing so is through the Congressional Record (which,
as discussed below, is available electronically).
The second general
federal reference source to be discussed is the US Code Congressional and
Administrative News (USCCAN). This multi volume reference tool
contains the legislative history for all laws passed by Congress. It is
organised into volumes by each congressional sitting, i.e. 100th Congress, 1st
session and 2nd session. As indicated above, the USCA annotations include
references to any House, Senate, or Joint House and Senate reports on
legislation adopted by Congress. These reports and other legislative history
(including any hearings or special reports) are compiled in USCCAN. While
legislative history, e.g. what a particular cabinet minister thought a bill
meant as it passed Parliament in Australia, may be relatively unimportant in the
Australian High Court, the case is far different in the US.
Often, Supreme Court and lower federal court jurisprudence is filled with
references to the legislative history, and not just to the House and Senate
Reports, but what a bill's floor manager or Committee Chairman thought the bill
meant as it passed is relevant material for judicial consideration. Thus, the
legislative history compiled in USCCAN is potentially critical for any
practitioner/researcher delving into US law.
Specialised
sources
There are in the US, as in Australia, a number of specialised
sources for practitioners in various legal sub-specialties. For the purposes of
this paper, we will only briefly mention two which may be of interest to large
commercial firms. First, is the Uniform Commercial Code. That code can be
found in Uniform Laws Annotated (ULA), which operates similarly to
the USCA, thus providing commercial practitioners and comparative lawyers
with similar research and resource support. Second, Commercial Clearing House
publishes a number of specialty publications, among them the CCH Federal
Securities Reporter, which is an essential research guide/source for those
firms whose practices extends to securities trading in the US or for lawyers and
firms engaged in comparative legal research.
FEDERAL 'COMMON' LAW, STATE LAW, AND GENERAL RESEARCH MATERIALS
As observed earlier, the legal system in the US states is
organised comparably to that of the federal system. Thus, many of the research
sources for federal law have their counterparts in each state. In sum, state
laws are codified and the codes are generally annotated with references to state
regulations, forms, and legal decisions which interpret state statutes.
Additionally, there is what might be called a US common law, that is law and
legal interpretation common among the states (as well as a distinct body of
federal common law, as declared by the US Supreme Court and other federal courts).
A number of
the digests, encyclopedias, and treatises referenced in the USCA are
equally, and perhaps, more useful for understanding this US common law. Some of
the more important and useful sources include American Law Reports
Annotated (ALR), American Jurisprudence (AM Jur),
Corpus Juris Secundum, and the Decennial Digest. Typically, these
research materials are organised alphabetically and topically and include
keyword access; some, like Am Jur, may be organised by subject, e.g.
constitutional law. Their usefulness arises from their ability to provide a
quick overview of common state practice. In particular the 'Restatements,' e.g.
Restatement of the Law of Property, Restatement of the Law of
Torts, Restatement of the Law of Contracts, are not only useful for
accessing this common law but may be accepted as particularly persuasive legal
authority.
Finally, we want to mention three additional research sources
on US law. The first is actually what might be called a research support source:
The Bluebook: a uniform system of citation, compiled by the editors of
the Columbia Law Review, Harvard Law Review, University of
Pennsylvania Law Review, and Yale Law Journal. Not only does it
provide a uniform legal citation guide for researchers and practitioners, it
also offers a comprehensive guide to courts, tribunals, etc, within the various
US jurisdictions, including a list of official reporters by
jurisdiction.
Second, Shepard's Legal Citation Service, available
on Lexis, is a useful tool to track legal precedent. Using
Shepard's, that is, 'Shepardising' a case by its citation, allows a legal
practitioner to determine how that case has been dealt with by other courts.
While the USCA may annotate important cases which interpret a particular
statute, it can not annotate all cases, particularly when a statute has been
heavily litigated.
However, using Shepard's the practitioner can
determine how a particular Federal District Court or Circuit Court has
interpreted key cases. Similarly, a leading case in a particular area of law
(whether at the state or federal level) can be 'Shepardised' to determine how
various state or federal courts have either followed or distinguished its
principles in applying that body of common law.
Third, the final source
to be discussed is the Index to Legal Periodicals (ILP). The
ILP is published in soft cover, once a month except for September. A hard
cover volume is published annually. The ILP is the key access point for
law journal articles published in the US. However, its reach is now much broader
encompassing the major law journals published in Canada, the UK, Australia and
New Zealand. Journal articles can be accessed via author, title, subject matter,
or keywords and as discussed in the next section of this paper, it is available
online. Access to ILP is as essential as access to the USCA for
any researcher or practitioner interested in US law.
The most useful
version of ILP is one the practitioner, researcher, or librarian can
design for him or her self or a particular law firm: Smart CILP
(Computerised Index to Legal Periodicals). Published by the Marian Gould Gallagher Law Library at the University of Washington
Law School, Smart CILP allows one to construct an individual research
profile using particular journals, topics, or both. Each week the researcher
receives an advance list (remembering that the published volume only appears
monthly) of all articles published in journals catalogued by the ILP that
fit within the individual's research profile. And, as of 1 August 2002, those
articles listed in an individual's Smart CILP document now have a direct
link (via either Westlaw or Lexis) to the electronically copy of the law journal
article.
ELECTRONIC ACCESS TO ESSENTIAL RESEARCH SOURCES
The electronic sources of US legal information are extensive and
provide very wide coverage, particularly for current information. For the
purposes of this paper, we are focusing on online services that are available as
either publicly accessible sources or as subscriber services. Web-based,
publicly accessible sources range from government web sites such as the Government Printing Office (GPO) to sites emanating from
university institutions, such as the excellent site maintained by the Legal Information Institute of
Cornell University Law School (LII). While there are numerous providers of
free research sources on the Internet, this article focuses on a smaller number
of sites that have provided consistent and reliable information over a number of
years.
In addition to these free Internet sites we also review the online
subscriber services of Lexis and Westlaw. The main difference between the free
resources and the subscriber services is the availability of analysis,
commentary and annotations. These 'add on' services are much more accessible
when researching in the online medium.
With a subscriber service, the
user is able to obtain all the relevant information from one source. However,
where the practitioner or researcher only requires the text of a particular
bill, act, or case, the free services on the Internet provide an invaluable and
cost efficient tool.
Legislation Proposed
legislation
The best free sources for locating information about
bills are the Library of Congress's site Thomas and the Government Printing Office (GPO) Access site for congressional materials. Thomas has the
full text of bills from the 101st Congress (1989/90) and bill summaries going
back to the 93rd Congress (1973/74). The default search is for the current
Congress (107th) with earlier sessions available in the on screen menu. A search
can be run by the bill number or through a full-text keyword search. With two or
more keywords, Thomas ranks relevancy first as a phrase, with the
least relevant being either word appearing in the text. The bill text is
available in html text or as a pdf download. For the US counterparts of the
Australian Parliament's explanatory memorandums and debate reported in Hansard, use the Committee Reports and
Congressional Record.
Bill information on Thomas
includes links to relevant Committee Reports and entries in the
Congressional Record. The GPO site provides access to all these
publications, however, it is not linked to the extent of the Thomas
entries. The coverage of Thomas is slightly
greater than GPO.
Lexis and Westlaw both provide access to these materials. The coverage
is generally greater than the free services with the added benefit of
annotations and more sophisticated search options.
When using these
subscriber services the researcher would most often be viewing this information
retrospectively, for example, by linking back to the legislative history from
the annotations in the Code. It is here that the online services of Lexis and
Westlaw are of greatest benefit via hyperlinked
cross-referencing.
Session laws
Once a bill is
signed by the President it is assigned a public law number. Public laws are sent
to the Law Revision Council to
officially determine which sections of the US Code are affected. At the
completion of each session of Congress, these laws are compiled in the
Statutes at Large. Free access to public laws is again available through
Thomas and GPO. The keyword searching on GPO is more extensive than Thomas, allowing a search
by subject, public law number, statutes at large citation, USC citation,
or bill number.
Lexis contains public laws from the 100th Congress onwards.
This service also provides links to their Bill Tracking Report, enabling
the researcher to see the path the bill took through the legislative process.
Links are provided to related topics allowing the practitioner/researcher to
access any articles available on the particular law. Westlaw has public laws from
1973 in addition to the US Code Congressional and Administrative News
which was identified earlier as an essential resource.
The
Code
General and permanent public laws are incorporated into the
United Stares Code, which is published every six years. There are
numerous internet sites providing access to the text of the Code, however the
site maintained by the Legal Information
Institute of Cornell Law School is widely regarded as one of the best free
sources of the USC. It allows a number of search alternatives. Most
useful are browsing through the alphabetical 'table of popular names,' or the
subject titles. Searches can be conducted by keyword or USC citation.
Each section provides a list of hyperlinks to notes, updates and parallel
authorities (e.g. the CFR), in addition to a link to topical references
by the LII in the subject relating to the section being viewed.
The
Code - annotated
As noted above, the provision of extensive
annotations to judicial interpretation, legislation and articles proves an
invaluable tool to the researcher of US law. Due to the extensive coverage of
the Annotated Codes, many researchers would 'bypass' the previous access points,
as the online versions provide direct links to the relevant legislative history.
The United States Code Annotated is available on Westlaw and provides all of the
services of the print version with the advantage of online searching and the
flexibility of linking and viewing cases interpreting a section of the Code. It
also links to relevant databases such as USC Legislative History
(LH) and the CFR.
Another version of an annotated Code is
provided by Lexis - the United States Code Service. The differences
between the two annotated Codes are minimal. The annotations sometimes vary as
each publisher focuses on cross referencing to other publications in their own
collections (for example, the USCA extensively cross references to the
USCCAN). Arguably, at least in the online medium, the USCA is
preferable as there are more active links to the cases given that West dominates
the publishing of law reports in the US.
Delegated legislation
(Administrative Regulations)
Free access to the Code of
Federal Regulations is available through GPO. This site offers the ability to search by keyword,
citation, or to browse. It also has a table of parallel authorities and a link
to the 'list of CFR sections affected' to check currency. The CFR
volumes are available online at the same time as the paper edition is released.
Previous editions can also be searched. The CFR may also be accessed from
Cornell where the search options are similar to that of the US
Code, in addition to the services provided by Lexis and Westlaw.
Uniform Commercial Code
(UCC)
The UCC is available at the Cornell LII
site, however, there are some limitations to the service due to licensing
agreements. The UCC library on Lexis contains state and federal
case law and statutes pertaining to the UCC. Westlaw's files contain
official text, cases, records and commentary and the Uniform Laws
Annotated.
Case law
The US Supreme
Court
In recent years, the opinions of the Supreme Court have
become available on the Internet. These decisions can be accessed from a number
of sources including: The US Supreme Court home
page, Project Hermes at Cape Western Reserve University, GPO, and the LII site at Cornell. Cornell also
has a selection of historic cases, over 300 which have been identified as
important cases to US history. These historic cases can be searched by keyword,
or the user can browse the groupings either by topic or alphabetically under
author or party name. Selected cases going back to 1937 are also located at the
FedWorld Site.
The US Supreme Court only allows counsel
30 minutes for argument, so the brief submitted to Court prior to the case being
heard provides useful material regarding the facts of the case and the legal
reasoning behind the argument. The texts of briefs are now available free on the
Internet for cases heard from 1999 onwards at the FindLaw web site. This material
is also available on Lexis with briefs going back to 1979 and on Westlaw which has
texts from 1990. The transcripts of oral argument are available from the Supreme Court web in addition to Lexis and Westlaw.
Circuit Courts of Appeals and US
District Court decisions
As with the opinions of the Supreme Court, there are a number of access points for cases
from the Federal District Courts and the Circuit Courts of Appeals. The
following is by no means an exhaustive list. The Villanova University's School of Law has a comprehensive
listing of federal courts as part of its Federal Court Locator. Cornell
provides a search facility for the Circuit Courts of Appeals and FindLaw is
another source, allowing the user to search or browse by
circuit.
American Law Reports - annotated
The
multi-volume American Law Reports are organised by issue, that is, the
various annotations attempt to collect all the relevant authority regarding a
particular substantive topic as a guide to the legal researcher. Thus, they are
an important starting point for common law research. The ALRs (from the
second series onward) are accessible through both Lexis and Westlaw.
Federal Securities Law
Reporter
Lexis has a CCH Incorporated Securities library which provides
coverage of the Federal Securities Law Reporter. Westlaw no longer
provides access to the CCH Reporter but does have a comprehensive library of
Federal Securities and Blue Sky Law.
Shepard's and other secondary
sources
As observed, the practice of 'noting up' cases in the US is
done with the Shepard's service. Shepard's is accessed through Lexis. Navigational
features include the use of coloured symbols to indicate treatment, and large
visual features to restrict citations and choosing KWIC [Key Words in Context]
or full format for text. As with any online service, the main advantage lies in
the ability to quickly cross to annotations through direct hyperlinks. There is
a shortcut to 'Shepard's - Check a Citation' on the front page of Lexis and a number of
additional features, such as an online tutorial for the first time user in
Shepard's and the Table of Authorities.
The Westlaw counterpart of
Shepard's is the KeyCite service. There are some differences in currency,
availability of recent citations and coverage of case law.
As is the
case in Australia, one starting point far research on US law is often the legal
encyclopedias. American Jurisprudence and Corpus Juris Secundum
were identified earlier and these are available online. Both Lexis and Westlaw provide access to American Jurisprudence,
however, Corpus Juris Secundum has only limited online coverage and only
with Westlaw.
The Restatements of Law are published
by the American Law Institute. Access via Lexis covers the Annotated Case
Citations, Rules and Table of Contents. Westlaw also provides
access.
Access to the Index to Legal Periodicals is also provided
by the online subscriber services. Lexis provides access to
ILP issues from 1978 onwards, while Westlaw's coverage begins in
1981. Subscription to the Current Index to Legal Periodicals is available
through the Marian Gould Gallagher
Library at the University of Washington School of Law. Westlaw also
provides access to the most recent (eight weeks) issues of CILP.
CONCLUSION
Following a summary view of the US court system to set our
discussion in context, we have attempted to provide a brief overview of the most
important research sources for federal law in the US, which in many instances,
also serve as research sources for common law and state law questions. Equally,
or perhaps, more importantly, we have attempted to provide a guide to accessing
those resources via free and subscriber-based electronic providers. Practice may
well not make one perfect, however, the key, in our view, to successfully using
those resources lies in their continued use. Each of the resources canvassed and
the methods of access has advantages and disadvantages which we have attempted
to highlight. Hopefully, familiarity with any particular resource and the means
of access breeds comfort rather than contempt, but that assessment must be left
to individual practitioners and researchers, as well as librarians who will
often be the first point of contact for the researcher or practitioner with a US
legal question.
Further reading
http://www.lawguru.com/
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