Legal Research Methodology

Legal Research Methodology

Legal research can be time consuming and sometimes offers limited results, but an understanding of the basic types of law, legal resources, and subject terms will aid the process.

This guide can give only a brief overview of the fundamentals of legal research. The best way to become familiar with legal research is to have a law librarian guide you the first time you undertake it. Although it may not make doing the research less complex, it will make the process more comfortable, which will allow you, the researcher, to consider the possibilities of what you are finding rather than becoming frustrated by the citation numbers, legal jargon, and variety of publishing practices.

Secondary Sources As Good Starting Points

Legal encyclopedias are a good source to consult first if you are unfamiliar with law and legal concepts. They combine primary and secondary sources to provide overviews of many aspects of law, and they give numerous citations to relied-upon authority.

Today, there are two major legal encyclopedias: Corpus Juris Secundum (CJS) (1936-) and American Jurisprudence (AmJur), 2nd edition, (1952-). For historical research, the older editions, Corpus Juris (1914-37) and American Jurisprudence (1936-52), are useful, as well as The American and English Encyclopaedia of Law (1887-96; 2nd edition, 1896-1905) and Ruling Case Law (1914-21). It is important to remember that each of these encyclopedias is different. Different topics, different subject headings, and different case law may be provided in each. In Corpus Juris Secundum each section has a summary of the law, usually in boldface type, and a reference to a topic heading (a key number) used in the West Digest System, which gives further access to related case law. In American Jurisprudence, research references (usually to American Law Reports, or ALR) are given under each major heading.

Legal treatises are also good sources for general information on substantive law, though most do not focus specifically on women's issues and rights. Consulting a treatise on a specific subject will usually yield some background information and, more important, citations to statutory or case law. Many of the treatises focusing on women were not published until the 1970s, but a few were published earlier. An early one that did relate specifically to women was Woman's Manual of Law, by Mary A. Greene (1857-1936), written in 1902 to “present in a clear, simple, and if possible, entertaining way, those principles of law governing the business world and domestic life which most men understand in some degree, or think they do, but which most women do not understand, and wish they did.”¹

Identifying the Appropriate Index Terms

When consulting legal treatises, encyclopedias, periodicals, digests, and codes, a variety of index terms are useful in researching issues concerning women. For modern sources, index terms familiar since the 1960s, such as “woman,” “sexual harassment,” and “marriage,” can be used. The best technique for searching an index is to begin with a narrow term and broaden the search. For instance, if you are trying to determine whether a state has laws on the battered-wife syndrome, start with the narrow term “battered wife syndrome.” If that does not yield results, broaden your search to “spousal abuse.” If you do not find either of these phrases, use the broader term “domestic violence.” Searching under antonyms, synonyms, and associated words of all kinds may lead to useful information.

Researching historical issues can be problematical because the legal status of women changed over time. The researcher must try to think the way an eighteenth-, nineteenth-, or early-twentieth-century legal scholar might have thought. Most legislation pertaining to women concerns them indirectly. Married women were considered “silent partners” in marriage relationships. As a result, “woman” or “women” were rarely used as indexing terms. By and large, indexing terms reflected a woman's relationship to a man. Terms such as “wives,” “dower” (a dower² being the portion of real and personal property of a deceased husband that the law gives to his widow during her life), “widows,” “coverture,” “femes covert” (married women), “femes sole” (single women), or “females” were used.

Normally, unless the application of a law treats men and women differently, there will be no distinct subject terms for indicating gender in an index. For instance, contract law applies to any party to a contract regardless of gender or position as long as the requirements for contracting are met, so there are no distinct headings for women; whereas property law, a substantive area, has distinct headings for women, because widows held a unique position in estate and succession laws. It is important to remember to make the distinction between law and social conditions in dealing with women's issues. Often, it was not the wording of the law that prohibited women from doing certain things, but the social interpretation of the law influenced by mores.

Next Steps: Understanding the Major Types of Law and Jurisdiction

Once you have become familiar with a legal topic from reading an overview of it in a legal encyclopedia, treatise, or other secondary source, you will likely want to explore it further in a host of primary legal sources. Before doing so, it is helpful to understand about the three major types of law and the significance of legal jurisdictions.

Although the term law is often used generically, there are three major categories of law, each of which is described more fully in the following subsections of this research methodology:

• Common law or case law, which is created by a judicial body, such as the Fourth Circuit Court of Appeals or the Virginia Supreme Court.
• Statutory law, which is created by a legislative body, such as the U.S. Congress or the State of Maryland General Assembly.
• Regulatory law, which is created and enforced by an administrative body, such as the U.S. Department of Labor or the State of Michigan Fair Employment Practices Commission.

Any or all of these categories might apply to any given topic relating to women. In many instances, these laws are interdependent, although they may appear to function independently. To add to the complexity, these types of laws are created by the appropriate body in each of the different jurisdictional units:

• federal
• state
• regional
• county
• city

In other words, each jurisdictional entity has governmental bodies that create common, statutory, and regulatory law, although some legal issues are handled more often at the federal level, while other issues are the domain of the states.For example, civil rights, immigration, interstate commerce, and constitutional issues are subject to federal jurisdiction. Issues such as domestic relations, which includes domestic violence; marriage and divorce; corporations; property; contracts; and criminal laws are generally governed by states, unless there is federal preemption. State laws and terminology will vary from state to state, and there are few comparative guides available. It is better to look at a specific state's laws or court decisions or to compare several specific states' laws and court decisions rather than to attempt to generalize about the legal criteria followed by all states.

Reading Legal Citations

Most primary sources are chronologically arranged. To find them, you must be able to read legal citations, which are fairly uniform in their format. In such citations, the number preceding the name of the source ordinarily refers to a volume or title number. The number following the name of the source refers to the page number on which the cited material begins or the section number if the first number is a title. For instance, Pub.L. 88-352, Title VII, 78 Stat. 241 indicates that Public Law 88-352, Title VII, can be found in volume 78 of the U.S. Statutes-at-Large on page 241. The United States Code citation for the same law, 42 U.S.C. § 2000e et seq., indicates that the beginning of the codified law is found in Title 42 of the United States Code, section 2000e. Similarly, Meritor Savings Bank v. Mechelle Vinson et al., 106 S.Ct. 2399 (1986), indicates that the Supreme Court decision is found in volume 106 of West's Supreme Court Reporter on page 2,399. Tables of abbreviations will help you identify an abbreviation. Legal dictionaries, dictionaries of legal abbreviations, and the Bluebook: A Uniform System of Citation provide commonly used abbreviations and acronyms.