Legal Research

Legal Research in the United States

Introduction

The 2014 American Bar Association Technology Report indicates that attorneys spend approximately one-fifth of their billable hours engaged in legal research (Joshua Poje, Legal Research, ABA Techreport 2014).

The MacCrate Report lists the essential skills for legal practice as problem solving, legal analysis and reasoning, legal research, factual investigation, communication, counseling, negotiation, litigation and alternative dispute resolution, organization and management of legal work, and recognizing and resolving ethical dilemmas (Am. Bar Ass’n, Section of Legal Educ. & Admissions to the Bar, Legal Education and Professional Development—An Educational Continuum: Report of the Task Force on Law Schools and the Profession: Narrowing the Gap 138–40 (1992)).

In 2005, the American Bar Association amended its Standard 302(b)(2)(i) [now 302((b)(2)] to include legal research problem solving as an entry-level practitioner competency skill (Am. Bar Ass’n, ABA Standards and Rules of Procedure for Approval of Law Schools 2015–2016, at 15 (2015); Vicenç Feliú & Helen Frazer, Embedded Librarians: Teaching Legal Research as a Lawyering Skill, 61 J. Legal Educ. 540, 541 n.8 (2012)).

Teaching Law Research

Aliza B. Kaplan & Kathleen Darvil, in “Think [and Practice] Like a Lawyer: Legal Research for the New Millennials,” (8 Legal Comm. & Rhetoric: JALWD 153 (2011)) wrote: “The current state of legal research instruction fails to train students to adequately research the law. Because of the limited amount of time devoted to teaching legal research and the superficial nature of that instruction, law students graduate and fail to perform at the level required of them by their employers. In order for law schools to fulfill their obligations to students, a fundamental change needs to be made in the way legal research is taught.

Law students must be taught how to research in a cost-effective manner, with a variety of tools
and in a variety of formats. They must also be taught how to research a problem conceptually
within an ever-changing “legal paradigm. (…) Legal professionals in particular are critical of new lawyers’ research skills; they say that new lawyers are unprepared to conduct legal research and that their research skills are unsophisticated.”

Similarly, Donald J. Dunn wrote in “Why Legal Research Skills Declined, or When Two Rights Make a Wrong” (85 Law Libr. J. 49-51 (1993)):

“[P]ractitioners complain about new associates who do not possess even the most rudimentary
legal research skills. These practitioners worry when they have to “write off” portions
of an associate’s billable hours because the time sheets submitted reflect research time far
in excess of the reasonable cost of the final bill. (…) [Law firm librarians] want to know why law schools have abrogated their responsibility for teaching legal research and have left it in the hands of the law firms. Law professors lament that their research assistants and the students in their seminars produce flawed work products because of superficial research or failure to consult standard sources. How is it, professors wonder, that after the first year law students do not know about basic legal research materials and methodologies?”

Legal research: Law of Libraries and Archives

Knowing the laws affecting the librarians work is important, spacially with some issues, such as intellectual property, have been plagued by conflicting and confusing advice.

Bryan M. Carson, a working librarian with a law degree, published “The Law of Libraries and Archives”. This work of nearly 400 pages will look good on one’s basic reference shelf. Striving to make the law understandable for non-lawyers, Carson reviews contracts, copyright and patent and trademark law, fair use and intellectual property, copyright issues in the classroom, search warrants and library records, Internet use policies, and how to read a legal citation.

Every legal matter is given a nice review, with ample legal references to case law and legal scholarship. For example, when Carson considers fair use and intellectual property for unpublished manuscripts (pp. 100-105), he provides a useful description of the Copyright Act, reviews the appropriate definitions, and then describes landmark cases (such as the J.D. Salinger case where Salinger manuscripts donated to libraries could not be quoted from because Salinger did not give up his intellectual property and the Richard Wright case where the manuscripts had been sold and, as a result, copyright assigned over to the archival repository). In such discussions, Carson is clear and concise in his analysis.

From time to time, Carson branches out and proposes some new directions or solutions to legal issues confronting archivists and librarians. Drawing on trade secret laws, Carson believes that these laws can be used by librarians and archivists “to help protect the confidentiality of our patron interactions” (p. 123). Carson writes, “I believe that trade secret law gives library [and archives] patrons an additional protection beyond that of professional ethics and state nondisclosure laws. My theory is that, under trade secret law, courts could enjoin libraries [and archives] from revealing patron information” (p. 156). I am not a lawyer, and I certainly don’t know how this will play out, but it is an intriguing proposal and reveals something of the value of the book.

Another interesting topic explored by Carson is the matter of “information malpractice,” tethering issues of professional ethics with that of legal concerns and considering the consequence of librarians offering legal and medical advice while still answering “directional and holdings questions” (p. 183). Carson explains that “we should not interpret information; rather, we should help patrons find appropriate tools, we should explain the use of these tools, and then we should get out of the way” (p. 187). While this is clearly different than the circumstances of most archivists, I wish Carson, here and elsewhere in the book, might have been more explicit in the differences archivists and librarians may find themselves in. Shortly after, for example, Carson does a nice job of explaining how archivists and librarians meet the legal definitions of professionals.

Throughout the book Carson discusses a topic by reviewing the relevant law, professional standards and ethics statements, and then tries to find practical stances for librarians (mostly) and archivists often where is conflict or confusion. When he weaves his way through the maze of laws, standards, and advice about access to library patron records, for example, Carson writes, “My solution is not something that comes from our professional associations, but rather from my background in law. What I would recommend is that librarians adopt the standard that psychologists, psychiatrists, clergy, and other professionals use. What a patient says to a counselor is confidential, but if the person is a danger to himself or others, the counselor has a duty to report this situation to the potential victim and to the appropriate authorities” (p. 238).

More resources from the companion website of the book:

Citations to Materials on the Americans With Disabilities Act
Required Format of Notice to Libraries and Archives of Normal Commercial Exploitation or Availability at Reasonable PricePolicies, Procedures, Resources, and Tutorials for Libraries
State and Territorial Library Privacy Laws (Full Text)
Sources of State and Territorial Library Privacy Laws
List of types of Library Materials Protected by State and Territorial Privacy Laws
Hawaii Attorney General Opinion on Library Privacy
Kentucky Attorney General Opinions on Library Privacy
Guidelines and Opinions on the Unauthorized Practice of Law

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Posted

May 10, 2016

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Robert

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One response to “Legal Research”

Andrew Larrick

May 30, 2017

Research in the law of the United States can be very complicated. Even most lawyers are familiar with the specialized sources in only a handful of legal practice areas. This pathfinder is intended to help members of the general public learn where to find the basic, major, sources of law and to find books and web-sites that can help explain the basics of the legal system.

Law is complicated in that it can come from many different sources. There are a number of different branches of government that can make “law”, in the American legal system (and most others!), and there are also overlapping areas of authority between the states and the federal government. When you begin to research a legal problem, one of your first questions will be whether the relevant law will come from the federal government, from a state government, or from both. A complicated set of rules relate to jurisdiction, or the determination first of what law applies (state or federal, and which state) and secondly of what court system will be able to hear the case and apply the law. There is also a distincton between substantive law – the legal rules and requirements governing behavior in the “real world” that may then lead to legal disputes – and procedural law, which is the law governing how disputes can proceed through the courts and what steps are allowed to each party in making its case.

The general public most often thinks of law as the laws, or statutes, passed by legislatures – namely the U.S. and state Congresses. Many people also recall that the United States Constitution and the constitutions of the states are law. But in the American legal system law also is made by courts, which develop new legal rules while they interpret constitutions and statutes and also general legal principles known as common law. Also, administrative regulations function very much like law. Administrative agencies, operating under the executive branches of each state or federal government, are often given power (authorized by the statutes passed by the legislatures) to flesh out those statutes by making more specific rules that the members of the legislative branch might not have the time or expertise to deal with themselves.

While I will mention print sources, I will focus on sources available freely online. I will also largely ignore the many sources that are available “online” but only through vended or proprietary subscription services (e.g. Lexis and Westlaw), rather than through Web sites. These are outside of the scope of this pathfinder because they are extremely specialized and expensive, and almost never available to members of the general public, or even to lawyers representing less well-financed clients.

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