Completing Your Statutory Law Research

Statutory research ends with case law research.

The U.S. legal system consists of norms that continue to adapt to social-economic changes and, of course, to our ever-changing mores. When the source of those norms is statutory, despite the fact that statutes are the binding norm, your final research never ends with locating that statute. Due to the common law nature of the US legal system, you need to incorporate court decisions applying that statutory provision. This process explained in other sections of this wiki is further outlined below.

A statute is still good law when it is still binding authority over the area it is supposed to regulate. Statutes may fall into desuetude. The activities they are called upon to regulate either disappear or become normal, when once considered deviant, and there is no desire to enforce the statute. For example, changes in mores change the way statutes are enforced. While adultery is still a crime in some states (although not a capital one any longer), rarely is one prosecuted for it.

Statutes and their rules may sometime be declared unconstitutional. Some may take decades to be held unconstitutional; others may be declared as such within a few years. For example, Virginia’s Racial Integrity Act of 1924 (the “Act”) required registration of race at birth and criminalized marriage between white and non-white persons. Like adultery, interracial marriages stopped being prosecuted as the Act little by little fell in desuetude. The role to put an explicit end to that statue’s binding effect fell on the U.S. Supreme Court. The Court declared in Act unconstitutional in 1967, in Loving v. Virginia, 388 U.S. 1 (1967). With one single decision, due to the stare decisis nature of our court decisions, the Court held all state statutes deeming interracial marriage illegal unconstitutional. Virginia was only one of 16 such states.

Another example where a statute’s life is cut short by the U.S. Supreme Court is a Connecticut statute, which criminalized the activity defined as “preventing conception.” CONN. GEN. STAT. § 53-32 (1958) The original statute GEN. STAT. § 7-1157 (1902) was amended by CONN. GEN. STAT. § 53-32 (1958) to expand its reach beyond acts of encouraging the commission of abortion to all acts preventing conception.

In Griswold v. Connecticut, 381 U.S. 479 (1965), the U.S. Supreme Court declared unconstitutional that Connecticut criminal statute. In Griswold, the Court found the 1958 revision unconstitutional on grounds that it violated “several fundamental constitutional guarantees” that the Court defined as one’s “zone of privacy” or “area of protected freedoms.” The Connecticut statute was repealed (never applied) after the Court decision. Whether the statute became obsolete due to the fact that it reflected Connecticut’s sense of social order and reproductive interests as existed in the 1950s, and which were bound to evolve in the decades to come remains unclear.

What all these examples try to make clear is the basic rule of statutory research:

  • Statutory research ends with case law research.

Thus, once you have located your statutory provision you need to make sure that there are no amendments to that provision and then you need to make sure that there are no cases affecting its binding effect (such as holding it unconstitutional).

For example, if your research is about the scope of subpoenas for records of electronic communications, as amended by Pub. L. 107–56 § 210 (2001), your research task to check its codified version in the most recent publication of the United States Code. Using the information contained in the statute itself you find out that its codified version resides at18 U.S.C. § 2703(c)(2). The most recent version of the United States Code is dated 2006. There are several free-of-charge electronic repositories which could help you locate that information. Once you do that, next you need to check whether any amendments occurred between 2006 and the date of your research. You use the FDSys U.S.C. annual supplements and then for the period of time left outside the purview of the annual supplements, the FDSys //Statutes at Large// collection.

Then, you need to make sure that there are no judiciary decisions related to the statutory provision of your research, and this step is the most complicated and quasi impossible to perform correctly for free.

As law students and practitioners know, the commercial digital aggregators have made this last step very easy. In fact Westlaw, and Lexis Advance automatically incorporate that step in the statutory research results. Those who cannot afford their fee but can still afford to pay for legal research may use Bloomberg Law ($450/month per user) to perform a full-text case in the appropriate case law folder for all cases applying the statute of interest. There are other less expensive alternatives, such as Loislaw, or Versus Law. For those students of legal research who cannot afford any expenses, the bad news is that Google Scholar is inadequate when it comes to comprehensive case law research, because altlaw was incomplete and so far there is no comprehensive index of all the decisions courts post freely on their website.

Of course, one can always attempt to see if the United States Supreme Court has held a statute unconstitutional, but in our federal common law system, other courts can achieve that result too. Thus, a practitioner cannot practice law without commercial updating services, or at least access to a comprehensive case law database.