Law 627: Legal Research: Unit 1: Overview

While there is no one standardized definition, two legal research scholars have defined legal research as "the process of identifying and retrieving information necessary to support legal decision-making. In its broadest sense, legal research includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation."

An initial step in developing legal research expertise is to develop an understanding of the types of materials that constitute "the law," and of the relationships between these materials. When researching a legal issue, it is often necessary to explore statutes (legislative enactments), cases (opinions of the judiciary), and/or regulatory materials (administrative agency regulations and decisions). All these types of materials are considered "primary sources." Additionally, most resources look at at least one supplementary resource, called "secondary sources," to aid their research process.

A common, and sometimes significant, challenge for a novice researcher is to gain a perspective on how such sources may apply to a particular subject matter and how they relate to each other. Typically a researcher will need to consult multiple sources and utilize different techniques for each type of resource. To further complicate the matter, a given problem may require a researcher to consult relevant materials may on any or all of the federal, state, or local levels.

With all this in mind it is easy to see why the structures, terminology, resources, and vocabulary are an essential starting point for anyone looking to learn about legal information.

**Quoted from J. Myron Jacobstein and Roy M. Mersky, Fundamentals of Legal Research, 8th ed. (Foundation Press, 2002) p. 1.

When most people think of "the law," they think of those laws that are passed by the legislature. In reality, the American legal system is a complex interplay of different types of law coming together to create a complete legal framework. These types of law typically follow the structure of American government, with laws being created by the legislative, judicial, and executive branches. Understanding each of these branches, their respective roles, and how they work together, is essential for legal research.

In the United States, the four sources of law, in the chronological order in which they are initially created, are:

1. Constitutions: establish the form of government and enumerate its powers, as well as the rights and liberties of its citizens. In the United States, constitutions are the highest legal authority at both the federal and state level.
    
2. Statutory Law (legislation): laws passed by an elected legislative body, such as the United States Congress or the Illinois General Assembly. Legislation is generally prospective in nature, time-sensitive, and organized by topic into codes.
    
3. Administrative Law (regulations): decisions, rules, and regulations made by the constitutional offices and administrative agencies of the executive branch. When authorized by enabling legislation, agencies promulgate rules that specify how they will carry out the law. These rules, or regulations, are collected into a topical code, similar to legislation.
    
4. Case Law / Cases (court opinions / court decisions / common law): is created by the courts through the assembled, published appellate decisions of a jurisdiction, and is mandatory (or binding) law on the lower courts in that jurisdiction. Courts only make law on the cases brought before them. Thus, case law is reactive in nature, made in response to a dispute, and restricted to the boundaries of that dispute.

When discussing legal sources, it is important to know the difference between primary and secondary sources.

Primary sources are those resources which are the law itself. That means a primary source is one of the four sources listed above. Lawyers use primary authority to determine what the law says about a given matter. Identifying and aggregating these materials in order to solve legal problems is what legal research is all about.

Primary sources can be mandatory (or binding) or persuasive. Mandatory authority is the term used for constitutions, cases, statutes, or regulations the court must follow. A primary source is mandatory when it is binding in a given jurisdiction. For legislative and administrative materials, this is often easy to figure out: Illinois statutes are mandatory or binding in Illinois. Making a determination as to whether a case is mandatory takes a bit more skill. Stated as a simple rule, the concept is lower courts are required to follow decisions from higher courts in the same jurisdiction.

Primary sources can also be persuasive authority. The term persuasive authority refers to any material the court may choose to follow or consider, but which the court does not have to adhere to when making its determination. Thus, primary law from another jurisdiction or a lower court may be used as persuasive authority.

Secondary sources are those materials which analyze, editorialize, summarize, or comment on the law. These materials do not have the force of law, but can be very helpful to legal researchers. While these materials are not usually used to support arguments in the way primary materials are, they can be cited for persuasive value. More importantly, these sources can help legal researchers understand the area of law in which they are researching and even connect them to valuable primary sources.

Secondary sources are always persuasive and are rarely cited to the court, save a select few types of secondary sources.

When conducting legal research, it is important to be mindful of the differences between primary and secondary sources. This concept will be discussed further in other units.