Introduction
There is what seems like an infinite supply of books, research guides, websites and experts on the topic of U.S. legal research. The experienced researcher may be reading this article wondering why yet another article discussing the topic is required. Unfortunately, most of the resources discussed in those guides are tailored to the U.S.-based researcher, who will likely have access to at least some of the wide array of fee-based databases and print resources. What options does the non-U.S. based researcher have, short of purchasing a subscription to one of the fee-based databases or visiting a major research library that may or may not carry the materials needed to perform the research?
Alison Shea
The good news is that there are now a number of free and low-cost resources readily available electronically to everyone. While a number of these resources have been around for awhile, only recently have they become more user-friendly with updated interfaces and search mechanisms. This article will briefly discuss these resources in the context of the process required to perform U.S. legal research. Deficiencies in available materials will be highlighted as well as brief explanations of what the U.S. sources of law actually do and how to best utilize them.
This article in no way guarantees the researcher success in understanding the U.S. legal system, nor does it ensure that the research performed is as complete and thorough as it possibly can be. Instead, this article attempts to provide some background for the experienced researcher in deciphering some of the more curious primary source citations and also offers suggestions on where these citations can be easily retrieved.
The U.S. Legal Research Process
When crafting a legal argument in the United States, one way to think of the research that needs to be done is that the U.S. Constitution acts as the “spine”, the statutes are the “bones”; and case law and regulations are the “flesh” all create the “body of law.”Footnote 1 In essence, the legal researcher must identify all relevant statutes, case law, and regulations to get the full picture of the “law” that is applicable to the issue.
However, with the incredible amount of primary source law out there, as well as questions of jurisdiction that govern where the legal researcher should start his research, it is often difficult to know where to start. The solution is the same as in U.K. jurisdictions: consult a secondary source such as a legal encyclopedia, a treatise or a journal article on the topic of law to be researched. Not only will the secondary source provide commentary and analysis on the topic, but it will also provide references to relevant primary sources; cases, statutes, and regulations.
The problem encountered by the legal researcher who does not have access to fee-based databases is that there are very few reputable secondary sources available for free. The publishers of the value-added content which makes secondary sources so useful in the first place are not going to be inclined to share that content for free. Although Google is always a good starting point, it cannot provide the level of authoritative analysis required to perform solid legal research. What are some alternatives for the foreign-based legal researcher with no access to either databases or print treatises?
• WexFootnote 2: Cornell LII's legal dictionary and encyclopaedia, offers the best alternative to a fee-based secondary source. Entries are written by vetted contributors and are maintained by the LII to ensure quality. An index is available to browse and the topics covered are extensive, although some entries are more developed than others.
• Government web sites: in addition to acting as a pathfinder to primary sources created by that agency or department, government websites will often provide guides to different topics that provide relevant citations to controlling statutory and regulatory law on the topic. For example, the U.S. Copyright Office has put together a number of circulars detailing the procedures and law involved in issuing copyrights.Footnote 3
• Google BooksFootnote 4: some reputable legal treatises and other secondary sources have actually been scanned in part and can be useful in giving the researcher a starting point. For example, a search for “products liability and lighter” reveals relevant hits in a number of treatises.Footnote 5 Although one should never rely on this method as an authoritative review of the topic, it can yield useful primary source citations that you can then retrieve and evaluate.
• Legal research guides authored by librarians: simply Googling a legal topic followed by “legal research guide” will yield a number of good results; this is an especially useful method in locating state legal research guides. Georgetown Law LibraryFootnote 6 has one of the best and most comprehensive collections of legal research guides.
Locating Primary Sources
Primary law sources (cases, statutes, and regulations) are what the legal researcher needs to rely on when drafting a legal opinion or brief in the U.S. system. It is therefore imperative that the researcher both locate and analyze all of the relevant primary sources. Statutes and regulations can be especially challenging for the non-U.S. based researcher to understand and appreciate how certain versions of each type of resource may be useful and may interact with the actual “legal” version of the law. The following section will go through the different ways that a primary source may be found in researching U.S. law. More in-depth discussion of the databases referenced will follow in the third section on no-cost and low-cost databases.
Legislative sources
If your cite looks like this…17 U.S.C. § 401(a)…you are looking for a statute
• What: The United States Code (U.S.C.) is the official codified version of the laws of the United States. The U.S.C. is arranged in 51 subject titlesFootnote 7 (with proposals for 4 more in considerationFootnote 8), and includes all the laws affecting that subject area within each title. The codified text is taken from the original text of the Public Laws as passed by Congress.
• Who: The U.S.C. is compiled by the Office of the Law Revision Council (OLRC)Footnote 9, which is part of Congress, and published by the Government Printing Office (GPO).
• When: Always cite to the U.S.C. when you wish to state what the law of the United States is on a certain topic. Also, using an annotated (unofficial) version of the code can help you locate relevant case law in which this section of the U.S.C. has been litigated, along with relevant citations to various secondary sources.
• Why: To locate the text of enacted legislation; the U.S.C. is the official version of the code and should always be cited.
• Where: The U.S.C. is available in authentic PDF files through FDsys;Footnote 10 also available in XML format through a beta version maintained by the OLRC.Footnote 11 The Cornell LII also offers an XML version.Footnote 12
• How: There are no freely-available indexes to the United States Code; in lieu of having access to a commercial index, your only options are to browse the table of contents or resort to full-text searching. If you know the Popular Name of the law (i.e., the No Child Left Behind Act) use the Popular Name Table.Footnote 13 Alternatively, using a secondary source will help you identify all the relevant sections of the U.S.C. related to your issue, as relevant sections may not be codified consecutively or even within the same Title.
If your cite looks like this…P.L. 100–568…you are looking for a public law
• What: Public Laws are enacted legislation as passed by Congress and signed into law by the President
• Who: Public Laws are created, debated, discussed, conferred and voted upon by the United States Congress. Laws can originate in either the House or the Senate, but the final version must be voted on favorably by both chambers and then sent to the President for his signature. Only after being signed into law by the President does the law receive its “PL” number.
• When: Public Laws are used when they are first passed into law and have not yet been compiled into the Statutes at Large and then codified into the U.S.C.
• Why: Knowing the Public Law number is very useful when trying to locate the legislative history of a particular code section.
• Where: Public Laws can be found in authentic PDF files in FDsys (back to 1995)Footnote 14 or Thomas (HTML text back to 1989, PDF versions from 1995).Footnote 15
• How: Public Laws are numbered sequentially so the best way to locate one is to browse through the list of laws enacted in a particular Congress. Also, if you are working backwards from a codified section, checking the “credits” or “history” notes will reveal the various Public Laws that either added, amended or repealed language within that section.
If your cite looks like this…102 Stat. 2853 (1988)…you are looking for a session law
• What: The Statutes at Large (Stat.) is the official chronological compilation of Public Laws.
• Who: The Office of the Federal Register compiles all Public Laws from each Congressional session and publishes them chronologically without changing the format or the content of the language.Footnote 16
• When: Statutes at Large is cited if a Public Law has been passed but has not yet been codified into the U.S.C.
• Why: Statutes at Large is considered the official version of the law; if there is ever a discrepancy between the Stat. version and the U.S.C. version, the Stat. version will be held to be the legally binding text.
• Where: The GPO is currently engaged in a project, in conjunction with the Library of Congress, to digitize the Statutes at Large. Currently, only volumes from 1951–2002 are availableFootnote 17 with very spotty coverage from 2003–2007 available.Footnote 18 However, the Stat. cite appears on all Public Laws, so if you know the PL number you can retrieve the text of the Act as it will appear in Statutes at Large.Footnote 19
• How: Public Laws are numbered sequentially so the best way to locate one is to browse through the list of laws enacted in a particular Congress. Also, if you are working backwards from a codified section, checking the “credits” or “history” notes will reveal the various Public Laws, with their corresponding Statutes at Large citation, that either added, amended, or repealed language within that section.
Administrative sources
If your cite looks like this….37 C.F.R. §201.20…you are looking for a regulation
• What: The Code of Federal Regulations (C.F.R.) is the official codified version of the regulations promulgated by executive agencies under authority from the legislature. The C.F.R. is arranged in 50 subject titlesFootnote 20 and within each title, Parts which cover the various executive agencies that have competencies in that subject area.
• Who: The C.F.R. is compiled and published by the Office of the Federal Register and the Government Printing Office (GPO).Footnote 21
• When: Always cite to most recent title of the C.F.R. when you a referring to a regulation; titles are updated on a quarterly basis each year.Footnote 22 However, if your regulation has been updated subsequent to its last official publication, you must cite to the Federal Register with a note “to be codified at __ C.F.R. ___”.
• Why: To locate the text of regulations and various presidential documents such as presidential messages and executive orders (codified in Title 3).
• Where: The C.F.R. is available in authentic PDF files through FDsys but does require the researcher to ensure it is up-to-date in its published form; to do this easily (but unofficially), consult the e-CFR which is generally updated to within a few days of the current date.Footnote 23 Cornell LII also offers an easy to use version of the CFRFootnote 24 and maintains “currency” links for each regulation to note when that version was last updated and identify any proposed or final rules that have been issued in the interim which affect that section. Finally, regulations are often linked to from the relevant agency's website; consult the regulating agency's websiteFootnote 25 and look for a section of the website that deals with “laws and regulations” and/or “policy”.Footnote 26
• How: The best way to locate a relevant regulation is to use an annotated statutory code to locate regulations that have been promulgated under that statute's authority. There is a also a very basic index available from the GPO, in print only. However, for many the only way to locate a regulation will be to full-text search either the FDsys version or the Cornell LII version. To ensure currency of the language of the regulation, you may choose to “note-up” with the List of Sections Affected (LSA) from the date the regulation was published to locate any proposed or final rules affecting your codified section; if there are changes, you must cite to the FR and follow that cite with the “to be codified” note.
If your cite looks like this….66 FR 34374 (June 28, 2001)…you are looking for an administrative notice, a proposed rule, or a final rule
• What: The Federal Register (FR) is the official daily publication of the executive agencies and publishes proposed rules.Footnote 27 The FR is arranged by agency.
• Who: Every executive agency submits its proposed rules final rules, notices and news to the Government Printing Office who then compile and publish the submissions the following business day.
• When: The FR is published every business day of the year and is consecutively paginated throughout the year. It should be consulted to “note-up” a regulation which has not been published very recently, as regulatory changes are much more frequent than statutory ones. Noting-up can be done through the List of Sections Affected (LSA) which essentially goes through and summarizes by title and section any changes or notices that have appeared in the Federal Register in a specific period of time. A much easier, albeit unofficial, way to do this is to use the e-CFR.
• Why: By publishing notice of proposed rules, the public is able to comment on these rules. The FR is also a source of official agency news, including any reorganizations or changes in competencies. The FR is a very important source especially for those working in heavily regulated industries.
• Where: The Federal Register,Footnote 28 LSA,Footnote 29 and e-CFRFootnote 30 are available through FDsys, and the FR is also available through Regulations.gov.Footnote 31
• How: There is no index to the FR, so the best way to locate a specific section is to use the Source Note from the C.F.R. that you are using. Browsing the FR is done by agency, so knowing which agency is responsible for your C.F.R. section is important. You can also full-text search the FR for free using Regulations.gov.
Case Law sources
Obtaining case law presents a different type of problem, as most U.S. courts require attorneys to use the “official” version of the case when submitting it as part of a brief. Aside from cases from the U.S. Supreme Courts, almost all “official” case reporters are published privately and are therefore not freely available. Unlike in the UK where the courts actually feed their decisions directly to BAILII, there is no centralized repository of case law in the United States outside of the fee-based databases.
Despite most official case reporters being privately published, decent options exist for researchers looking for federal case law. Federal case law includes cases coming out of the Supreme Court (official reporter abbreviation: U.S.), the Circuit Courts (official reporter abbreviation: F._[edition, if there is one]), and the District Courts (official reporter abbreviation: F.Supp_[edition, if there is one]). There is also a separate reporter for bankruptcy cases (official reporter abbreviation: BR).
The easiest way to obtain a federal case for free today is to use Google Scholar's legal opinion search engine.Footnote 32 By searching the citation or inputting a full-text search query, the database utilizes Google's excellent search algorithm and does generally return an excellent set of results. Another feature that sets Google Scholar apart is its comprehensive coverage of case law. Google Scholar is discussed in more detail in the subsequent section. Recent decisions can be obtained in authentic PDF format from the individual court's websitesFootnote 33, but these offerings vary greatly amongst courts in terms of coverage.
One of the most important aspects of case law research is the need to ensure the cases being relied upon are still good law. To do this, researchers use a citator, the most popular of which, and often the popular name for the process, is Shepard's. This is the area in which no-cost and low-cost databases still have the most distance to cover in offering a comprehensive citator that can be relied on by the researcher. Lexis and Westlaw still have a clear advantage in this category of research, but it should be noted that non-subscribers to Westlaw can still use of the KeyCite citatory function by using Westlaw by Credit Card service.Footnote 34
No-Cost and Low-Cost Databases
The following list of no-cost and low-cost databases is not exhaustive. The selection reflects those most commonly and successfully, used by the author.
No-cost legal research databases
FDsysFootnote 35
A perennial favorite of law librarians, FDsys is a service of the U.S. Government Printing Office that provides free electronic access to a wealth of important information products produced by the Federal Government including legislative resources such as Titles 1–50 of the United States Code, public laws, Congressional publications including reports, hearings, and the Congressional Record; administrative resources including the Code of Federal Regulations, Federal Register, and List of CFR Sections Affected; and executive documents such as the Public Papers of the Presidents of the United States, Weekly Compilation of Presidential Documents and Executive Orders.
• Why use it: The GPO is the official government publisher; use this source when you already have a citation and need an authentic version;
• Pros: Best place to locate authentic versions of the USC, CFR and various other government documents, including legislative history;
• Cons: Does not have a good search engine but functionality has vastly improved.
Cornell Legal Information Institute (Cornell LII)Footnote 36
This site offers all opinions of the United States Supreme Court handed down since 1992, together with over 600 earlier decisions selected for their historic importance, over a decade of opinions of the New York Court of Appeals, and the full United States Code. It also publishes important secondary sources: libraries in two important areas (legal ethics and social security) and a series of “topical” pages that serve as concise explanatory guides and internet resource listings for roughly 100 areas of law.
• Why use it: In theory, this site should function as the U.S.' version of BAILII;
• Pros: Good for locating state statutes and even provides lists of relevant statutes from all 50 jurisdictions on certain topics (i.e., civil procedure codes, health, labor, etc.);
• Cons: Does not function anywhere near as well as BAILII especially in the area of case law. Instead of hosting its own content, it simply re-directs users to the content provider's websites, which doesn't always work well.
Google ScholarFootnote 37
Google Scholar allows you to search and read opinions for U.S. state appellate and supreme court cases since 1950, U.S. federal district, appellate, tax and bankruptcy courts since 1923 and U.S. Supreme Court cases since 1791. Cases are cited in Bluebook format, include internal page numbers and are cross-linked within the database. The service also crawls other free case law providers and provides links to cases on these sites. In addition to case law, Google Scholar provides links to secondary sources, such as law reviews and journals. To search, go to Google Scholar and click on the “Legal opinions and journals” radio button before running a search.
• Why use it: Locating federal court opinions and legal journal articles using Google's excellent search algorithm;
• Pros: Extremely easy to use, powerful search engine, pagination of cases matches that of official reporter, and has some semblance of a citator service;
• Cons: Not the official version of the case, difficult to authoritatively rely on the citator service.
Low-cost legal research databases available to non-U.S. based researchers
• Why use them: Relatively good alternative to much more expensive databases Lexis and Westlaw;
• Pros: Allows you to search federal and state cases, statues, and regulations using the same boolean search methods as with Lexis and Westlaw;
• Cons: Don't have the greatest case citators, don't have very much by way of secondary sources or annotated primary sources.
FastcaseFootnote 38
A comprehensive online law library with all federal cases since inception, as well as state and appellate cases for all 50 states going back to 1950 or earlier. Fastcase also provides access to federal and state constitutions, statutes, and administrative codes. The citator feature of Fastcase compares favorably to those in Lexis and Westlaw. Individuals can subscribe for as little as $95 per month and limited access is available to members of at least 23 state bar associations.
LoislawFootnote 39
One of the more robust alternatives to Lexis and Westlaw, Loislaw provides searchable, full-text access to federal and state primary sources, and also provides the option to purchase access to public records databases, legal treatise libraries and legal forms. Individuals can subscribe for as little as $40–80 per month per jurisdiction. Different practice area packages are also available, and limited access is available to New York Bar Association members.
