American law, like any other body of law, is a human construct, which aims to promote legitimate order through its myriad of concrete temporal norms. Those norms may be public or private. The public norms are: legislation, decisional, or administrative law. These norms are the product of specific institutions of public lawmaking. In other words, all three branches of the government make law both at the federal and at the state level, although lawmaking powers may not be expressly provided for in either the federal Constitution or its state counterparts.
In fact, the federal Constitution states that all legislative powers are vested in Congress (Article I, Section 1), and that the judicial power vested in the Supreme Court covers cases and controversies (Article III, Section 2). But, as we have seen in the previous chapters, all three branches create law, although only legislatures enact statutes. Conversely, the judicial branch-the federal and state court system-is responsible for solving specific disputes, and in that process of making the necessary law. This reality is usually explained through the doctrine of stare decisis, which stands for the principle that older cases further govern similar subsequent cases in the lower courts within the same jurisdiction. Theoretically, the way in which a court applies a statute becomes the way next time a lower court within the same jurisdiction, when faced with a similar fact pattern, will be expected to interpret and apply that statute. To this extent, the meaning of a statute is a court construct. The executive branch also makes law. While it is theoretically charged with enforcing the statutes, in doing so it issues its own legally binding rules. The President, like all state governors, issues executive orders. The federal and state agencies issue specific regulations that further detail the rules contained in their enabling statutes. Additionally, upon private complaints, agencies may conduct quasi-trials, which are called hearings, and issue decisions, which are similar to a court’s decisions.
This explanation starts from the premise that learning about law is also learning to research its specific norms. You may have different interests that will prompt you toward learning about the law, but notwithstanding them, there are specific principles that apply to any legal studies and research endeavor. They will be further discussed here.
First, researching the U.S. legal system rarely is a simple task. You have realized by now that law is often written in a jargon that is not user-friendly, and the most effective way to be sure that you found what you want is by identifying a “secondary source” or a commentary on that rule that will explain it to you.
Before you start searching for a specific piece of legislation, case law or administrative regulation, in other words a primary source, you should find a commentary about it, or if the research question is multi-faceted, perhaps you need to come up with a research plan. A research plan encourages you to organize the information you know and focus on how you can use what you know to find what you do not know.
The steps of an easy research plan are mentioned below:
1.restate the research question with an eye for research terms and legal repositories of law (primary sources) and legal commentaries (secondary sources), or deconstruct the research question into a question of law repositories;
2. identify the secondary sources you believe would more helpful;
3.think about how you would use them;
4.identify the potential repositories of primary sources;
5. remember the research terms you may want to use to locate your answer within those repositories; and
6. make sure to plan to verify the status of your answer, whether it still is good law.
Often, your resources and specific needs may dictate your research strategy. Especially from outside the United States, your search may be circumscribed to electronic, free-of-charge databases. However, relying only on free-of charge resources may not be the easiest way for complete, correct and comprehensive research results. For example, federal statutes are available for free, but finding the most recent version of the relevant statute may require full-text search strategies that are easily elusive to many.
Similarly, many court opinions are available free-of-charge from various web sites, but only fee-based databases can ensure, whether the court opinion you are interested in is still good law, or has been reversed, or otherwise changed by the court of a higher rank within the same jurisdiction. As shown here, while many aspects of legal research are a click away, that click can be either hard to find or prohibitively expensive. That is why, once you have a good plan in place, keep a blog-like record of your research steps, so you will not voer twice the same research steps, or worse, forget which avenue was the correct one and follow the wild incorrect approach.
So, let’s get started with the research plan! We will start by following its first two steps:
1. deconstruct the research question into a question of law repositories, and
2. identify the secondary sources which could potentially best guide your search.