This chapter shows how to organize your legal question into the conceptual categories used by publishers of law books and websites, a necessary and preliminary step to finding appropriate background resources (which are covered in the next chapter). Second, this chapter introduces you to some techniques for using legal indexes. legal indexes are most commonly used to find:• relevant discussions in the background resources you select; • statutes in annotated codes (Chapter 6); and• cases through the case digest system (Chapter 9).When doing internet research you will be using search techniques that are similar to those used in searching indexes. these techniques are introduced below.
Land of the law
Two basic facts, once firmly understood, will greatly help you cope when you visit the land of the law. the first is obvious: the land of the law is run almost exclusively by lawyers. laws are drafted by lawyers for legislatures, which are also often heavily influenced by or made up of lawyers. laws are interpreted by lawyers who have become judges. laws are enforced by lawyers who are district attorneys and attorneys general. disputes are commonly arbitrated and decided by lawyers acting as referees. Agency regulations are drafted by the agency’s legal department. presidents, governors and corporate executives all have lawyers at their sides. in short, lawyers are in firm control of the law business.the second important fact is that lawyers tend to think very much alike. it is no wonder. lawyers gain entrance to their profession by going to law school, where they are taught by law professors who are lawyers. As part of this training, law students are taught subtly and not so subtly to think like lawyers, act like lawyers, talk like lawyers, dress like lawyers and breathe like lawyers. in addition: • Most law schools teach the same subjects.• Most law schools use the same teaching method.• Most law schools attempt to produce the same type ofproduct.• Most law schools succeed.how does this uniformity help you find your way around the land of the law? it simply means that you need come to terms with only one dialect and culture. A lawyer from California can speak to a lawyer in north dakota using one set of terms and concepts, and you can too once you learn the lingo.obviously, you won’t be able to do this all at once, but if you spend any amount of time in the land of the law, you’ll be surprised at how fast your vocabulary grows. indeed, you’ll soon realize that what seemed like a complex language is really only a collection of terms (jargon) containing very few verbs, and most of the nouns are only new terms for concepts you already know. (this is why we advise you to arm yourself with a good law dictionary.)that lawyers think as well as talk alike is ex tremely helpful to the lay legal researcher. lawyers are great reductionists. the system they use to clas sify legal knowledge involves carving it all into successively smaller categories. if you think of a set of nesting boxes, which always seem to have yet another smaller box inside, you will have a pretty good idea of how this works.the background materials you will use in your research also are organized this way, dividing their contents into smaller and smaller subject categories. As a first step in performing effective legal research, then, you need to be able to think of your problem in terms of these categories. then you’ll be able to find relevant background materials and really get going on your legal research. Below we introduce you to the main legal classifications and suggest how to go about applying them to your problem.
Find the Broad Legal Category for Your Problem
Assume that you seek a lawyer’s advice because you injured your back when you slipped on a banana peel at the supermarket. An experienced lawyer will go through a thought process that, if verbalized, might sound something like this: “Ah, let’s see, this person slipped, fell and injured herself, possibly badly. Back injuries cause a lot of pain—that means high damages. definitely it is a personal injury case, a civil matter, negligence. let’s see, in order to recover for negligence, some action or inaction on the part of the supermarket must have been wrongful. in this situation it probably wasn’t an intentional tort, but more likely carelessness, or negligence. hmm, whether the market was negligent probably depends on how long employees let the peel remain on the floor before the accident. hmm, won der if there were any prior occurrences like this?” this exercise in stream-of-consciousness writing demonstrates how lawyers reduce problems to smaller parts and classify the parts according to familiar—to them—legal jargon. While this process may seem a little intimidating if you are unfamiliar with the law, don’t worry. Anybody can learn to break big questions down into little ones and to cast a legal research problem into its appropriate topics and subtopics. And as we mentioned, once you are able to hang the proper labels on various factual situ ations, your ability to perform meaningful legal re search will be almost assured. you may be surprised at how easy the classification game really is.there are four main questions to answer when classifying your legal question:• Does it involve federal law, state law or both?• Does it involve criminal law or civil law?• Does it involve the substance of the law or legal procedure?• What legal category does it belong in?When you have answered each of these questions, you will find it much easier to choose the background resources to look in first. if your question involves the substance of the federal criminal law, you will be interested in one group of books; if it involves state civil law, you will be looking for others. narrowing your search further, placing your question in the right category will tell you which specific books—and parts of the books—you need. For instance, if your federal law problem involves the federal drug laws, you will probably use a different book than if it involves securities fraud.
Does the Situation Involve Federal Law or State Law?
probably the single-most important classification is whether your issue involves state law, federal law or both. this is important because discussions of state law and federal law are commonly found in completely different books. the chart below lists topics usually covered by state law, federal law or both.
State Law: For constitutional and historical reasons, most legal research involves state rather than federal law. the u.S. Constitution restricts Congress’ power to regu late to a few specific areas and leaves most lawmaking power to state governments.
Federal Law: For most of our country’s history, federal law was lim ited to court interpretations of the u.S. Constitution and the Bill of rights, as well as the topics that Congress is specifically authorized to address under the Constitution, such as the regulation of commerce and immigration. Social welfare was not high on the government’s agenda. now, however, federal law commonly affects a broad range of social welfare, health and environmental issues.
Both State and Federal Law: A large number of legal areas now involve both state and federal law. Federal and state governments both are concerned about such topics as environmental law, consumer protection and the enforcement of child support statutes, and both have written laws on these subjects. A good general rule is that when ever federal funds are involved, at least one element of federal law is involved.one reason for the increasing overlap of federal and state law is that Congress is authorized by the Constitution to spend money for the general welfare, and it creates programs under which federal funds are offered to state governments under certain condi tions. typically, the state must match the funds in whole or in part and administer the program in strict conformity with requirements established by Congress. While no state must participate in this type of program, few states are able to resist. Since the 1930s (the new deal), hundreds of these cost-sharing programs have been created and continue to operate.When states participate in these programs, typi cally they are given some latitude by the federal laws in how the program is conducted. this means that state statutes and regulations must be passed to govern the state operation. And courts end up interpreting these statutes and regulations when disputes arise under them. in short, federal cost-sharing programs created by federal law stimulate the creation of state law as well.if you have a problem that is affected by both federal and state law, you may have to look to both state and federal law background resources to get a firm handle on your problem.
A Partial Listing of Federal, State and Mixed Categories
State Law: Child custody, conservatorships, con-tracts, corporations, crimes (in most cases), divorce, durable powers of attorney for health care and financial management, guardianships, landlord-tenant relationships, licensing (businesses and professions), living wills, motor vehicles, partnerships, paternity, personal injuries, probate, property taxation, real estate, trusts, wills, worker’s com pensation and zoning.
Federal Law: Admiralty, agriculture, bankruptcy, cases that interpret and reinterpret the U.S. Constitution and civil rights laws, copyright, crimes involving the movement of people or substances across state lines for illegal purposes, customs, federal tax, food and drug regulation, immigration, interstate commerce, maritime, Native Americans, patent, postal, Social Security and trademark.
Both State and Federal Law: Consumer protection, employment, environmental protection, health law, labor law, occupational safety, subsidized housing, trans portation, unemployment insurance, veterans’ benefits and welfare law.
Does the Situation Involve Criminal Law or Civil Law?
Another important classification to make before beginning your research is whether you are dealing with “criminal” or “civil” law. this classification is also necessary to determine which background resources to use first.
Criminal Law
generally, if a certain type of behavior is punishable by imprisonment, then criminal law is involved. For example, legislatures have generally chosen to treat shoplifting as a crime, and convicted shoplifters can end up in jail. on the other hand, most legislatures have chosen not to criminalize shady business practices. instead they have designated them as mat ters for which victims can sue for monetary compen-sation—that is, civil offenses.Criminal charges are usually initiated in court by a government prosecutor, though some states allow minor criminal charges to be brought by a victim. the government is always involved, however, because crimes are considered “offenses against the people.” Accordingly, if you are involved in a legal dispute with a non-governmental individual or corporation, then the matter is not criminal. But because both the state and federal governments are of ten involved in civil as well as criminal matters, it is impossible to tell whether you are dealing with a criminal or civil situation based solely on the fact that a government entity is one of the parties.
Civil LawAll legal questions that don’t involve crimes are mat-ters of the civil law. When a suit is filed in court over a broken contract, deliberate or negligent injury, withheld government benefit, failed marriage (divorce) or any other dispute, a civil action has been brought and civil law is involved. in a civil action, the court may be asked to issue orders, award monetary damages or dissolve a marriage, but impris onment is almost never a possibility. An exception is when a court orders a parent to pay child support and the parent willfully refuses.
Is the Problem Substantive or Procedural?
Primarily for legal analysis and classification, the law has been divided into two large subgroups. one of these includes all law that establishes the rights we enjoy and the duties we owe to the government and to other people and entities. this type of law is often referred to as the “substantive law.” the other major subgroup includes all law that governs the way the justice system works. this law is termed “procedural.” once you pigeonhole your issue into one of these two categories, you are much closer to jumping into your research. to see how this classification works, let’s apply it to the criminal and civil areas of the law.
Criminal Law “Criminal law” and “criminal procedure” are treated separately by most legal resources.
The Difference Between Criminal Law and Criminal Procedure
The difference between substantive criminal law and criminal procedure is well-illustrated in cases where a per son is found guilty of a particular crime but escapes pun ishment because the proper procedures weren’t used and her rights were violated. For ex-ample, if the police search a house without a search warrant and they find an illegal drug, the possessor of the drug may go free because there was no warrant. The fact that the possession of the drug is de fined as a crime is a substantive criminal law matter, while the results of engaging in a warrantless search is a matter of criminal procedure.
Substantive Criminal Law Substantive criminal law concerns the definition and punishment of crimes. For example, the substantive criminal law tells us the difference between burglary (breaking and entering into the premises of another with the intent to commit a theft or felony) and larceny (taking personal property rightfully in the possession of another with intent to steal). it also specifies how each of these crimes is to be punished. Below is a list of common criminal substantive law categories.
Criminal Law Substantive Categories
Assault and battery Malicious mischiefBreaking and entering Marijuana cultivationBurglary MurderConspiracy RapeDisorderly conduct RobberyDrug and narcotics offenses ShopliftingDrunk driving SmugglingJuvenile offenses Tax evasionKidnapping TrespassLarceny Weapons offensesLewd and lascivious behavior Criminal Procedure. Criminal procedure con cerns the way people accused of crimes are treated by the criminal justice system. For example, criminal procedure involves such things as what kinds of evi dence can be used in a criminal trial, when an accused must be brought to trial, when a person can be released on bail and so on. Below is a list of common criminal procedure categories.Criminal Procedure TopicsArraignments PleasArrests Preliminary hearingsConfessions ProbationCross-examination Probation reportsExtradition Right to counselGrand jury Search and seizure Indictments SentencingJury selection Speedy trialJury verdicts Suppression of evidenceMiranda warnings TrialsPlea bargaining Witnesses
Civil Law
Substantive Civil Law
Substantive civil law consists of numerous sets of principles that determine the rights, duties and obligations that exist between individuals and institutions such as corporations and governments. each set of principles is covered by a separate civil law category, developed by the courts and legislatures over a long time. For example, when a car accident damages property and injures people, a set of principles labeled “tort law” that has been formulated over a 600-year period determines who is liable to whom and for what.Most legal research involves the substantive civil law. to help you fit your problem into the correct category, we have provided a large list of categories with definitions for each. these are found in “Substantive Civil law Categories,” below.
Civil Procedure
the rules that govern how our civil justice system works are often termed “rules of civil procedure.” they control such matters as which courts have authority to decide different kinds of lawsuits, what papers need to be filed, when they need to filed, who can be sued, what kinds of proof can be offered in court and how to appeal.in the past, civil procedure varied considerably from state to state and court to court. now, many states have procedures that are very similar to the Federal rules of Civil procedure that are used in all federal courts. however, although the trend is defi nitely toward national uniformity, courts’ procedures still vary from one location to the next.rather than provide a list of civil procedure categories here, we refer you back to Chapter 3 for a close reading of court procedures. that material will provide some categories to start your research. Also, see Chapter 6 for pointers on researching procedure.
Substantive Civil Law Categories
the list set out below contains some of the more common substantive civil law categories utilized by the law books. Some of these areas overlap and may be used interchangeably by book titles and in dexes. if you can assign one or more of the categories to your problem, it will be much easier for you to find what you’re looking for. if you can’t get your problem to fit within one of these categories, don’t despair. go on to the discussion later in this chapter on how to use legal indexes, and then proceed with your research.Administrative Law: the law governing how admin-istrative agencies function, including the procedures used by agencies when they issue regulations, the way agencies conduct hearings, the scope of authority granted agencies by the legislature and how agencies enforce their policies, decisions and regulations.Bankruptcy: who can use the bankruptcy courts and under what circumstances, the rules and procedures used by the bankruptcy courts when a person or business files a bankruptcy petition to cancel debts or restructure them so as to continue operations, which debts are subject to cancella tion or restructuring, and how any remaining assets of the person declaring bankruptcy are distributed. Bankruptcy is governed by federal law but also involves the interpretation of state property exemption rules.Business and Professions Law: restrictions and license requirements placed on professionals (for example, doctors and lawyers) and other occupa tional groups, such as building contractors and undertakers.Business Entity Law: state statutes dealing with how to create business entities such as corporations, limited liability companies and partnerships; state and federal statutes and cases that deal with how the various types of business entities are to be operated and taxed; the rights of shareholders, the rights and duties of the entity’s officers and directors, the relationship between an entity and side parties who commercially interact with it; procedures for elections of officers; and how evidence of ownership in the entity (stock, shares) is issued. Civil Rights Law: statutes and constitutional provi sions that apply to discrimination on the basis of such legally-recognized characteristics as race, sex, ethnic or national back ground or color. (See also housing law and prison law.)Commercial Law: the federal and state regulations governing commercial relations between borrowers and lenders, banks and their customers, wholesalers and retail-ers and mortgagors and mortgagees. generally, this area involves disputes between businesspeople rather than between a businessperson and a consumer. (See also Consumer law.) Computer Law: the various issues that are especially relevant to the manufacture, use and sale of computers and computer software. this area includes such topics as copyrighting and patenting of computer software, war ranties connected with computer sales, use of com puter-generated documents in court, access to computerized files, privacy in connection with computer databases, computer-related crimes and trade secret protection in the computer industry.Constitutional Law: all situations where the consti tution-ality of governmental action is called into question. A few representative examples of constitutional law issues are: state laws that conflict with federal laws, the im position of prison discipline on prisoners without adequate regard for fairness, federal laws that give Congress veto power over subsequent administrative regulations and a school board permitting prayer to occur in its schools. there are hundreds of other con stitutional law questions. Many of these are also found un der the other substantive law labels, such as housing law, civil rights law, prison law and media law.Consumer Law: federal and state statutory requirements governing transactions between a seller and a buyer of per-sonal property in a commercial setting. this field typi cally involves situations where persons buy items on time—such as cars, household furniture or electronic equipment—and a dispute arises as to whether the transaction was fair, whether the buyer was provided with sufficient notice of what the transaction actually involved or, if the goods didn’t work, whether the seller is responsible under a war-ranty or guarantee.Contracts: written and oral agreements, when such agreements are enforceable, when they may be broken, and what happens if they’re broken or cancelled. Contract law is primarily concerned with general questions of con-tract law rather than with specific types of contracts. For specific types of contracts, see Consumer law, Commercial law, insurance law, property law, landlord-tenant law, intellectual property law and labor law.Corporation Law: how corporations are formed, the re-quirements for corporate structure, the rights of sharehold-ers, the rights and duties of corporate officers and di rectors, the relationship between a corporation and outside parties who commercially interact with it, procedures for elections of officers, how stock is issued, and similar mat ters.Creditor/Debtor Law: how debts are collected, restrictions on collection practices, harassment by collectors, credit and credit card issues, how personal and business debts may cancelled or reorganized in bankruptcy, enforcement of judgments, wage garnishments, levies on personal property, and foreclosures.Cyberlaw: how the internet affects copyright, trademark, libel, pornography, contracts, privacy and court jurisdiction.Education Law: the rights of students and the re strictions placed on them by schools, school funding formu las, educa-tional standards, home schooling, competency testing, remedial programs for the developmentally disabled and education ally hand icapped, financial assistance to students, student political affairs, teach ers’ rights and responsibilities, business and la bor matters peculiar to schools (for example, teach ers’ unions, tenure, placement) and similar matters.Elder Law: Social Security, Medicare, Medicaid, nursing homes, and Special needs trusts.Employment Law: the rights of employees and the restric-tions placed on employers by law. this area is also con-cerned with employment discrimination against minori ties (see also Civil rights), wrongful discharge of employees (see also torts), and management-labor relations (see also labor law).Energy Law: the state and federal laws governing the production, distribution and utilization of coal, natural gas, oil, electrical and nuclear power, and with such alter-native sources of energy as solar power, wind power and co-generation; also covers what rates energy companies are entitled to charge consumers, the process for obtaining rate changes, the licensing of energy production plants and consumer service requirements.Environmental Law: the numerous state and federal statutes, regulations and cases that govern the uses of the environ ment by business, government and individuals. Covers issues of air and water pollution, the environmental impact of new projects, the uses of national forests and parks, the preserva tion of endangered species, toxic and nuclear wastes, and similar matters.Estate Planning: how people arrange for the distribution of their property after they die, and how they can avoid paying taxes and probate fees by taking certain actions while they’re alive; includes such subjects as living trusts, joint tenancies, wills, testamentary trusts and gifts.Evidence: what kinds of items and testimony can be introduced as proof in a trial or hearing, the meth ods used to introduce such proof, who has the responsi bility to intro-duce what types of proof on what types of is sues, and how much weight the trier of fact (judge or jury) should give dif-ferent types of proof.Family Law, Divorce Law, Domestic Relations Law: all matters relating to annulment, marriage, separa tion, di-vorce, taxation upon divorce, child support, child custody, child visitation, marital property, community property, guardianships, adoptions and durable powers of attorney; also, the principles governing living-together situations are taken from this area of the law. (See also juvenile law.) Health Law: the type and quality of medical treatment received from hospitals, health facility regulation and planning, occupational health and safety requirements, rural and neighborhood health clinics, the management of epidemics, the control of pesticide use, and other issues related to health.
Housing Law: numerous programs financed in whole or in part by the federal government that involve housing subsidies for construction and rental assistance, public housing, state and local planning requirements related to the type and amount of housing in different areas, and discriminatory housing practices. (See also Civil rights law.) Insurance Law: problems arising under any kind of insurance contract, such as life insurance, car insurance, homeowners’ insurance, fire insurance and disability insurance. (See unemployment insurance law for a separate treatment of that topic.) this area is also concerned with the duty of insurance companies to exercise good faith when dealing with insureds and beneficiaries. (See also tort law.)Intellectual Property Law: the laws and procedures governing copyrights, trademarks, trade secrets and patents.Juvenile Law: juvenile delinquency (when a child commits an act that would be a crime if he were an adult), child neglect and abuse by parents, juvenile-status offenses (acts that are not crimes but that are juvenile of fenses, like running away from home or being truant from school), and juvenile court procedures.Labor Law: issues surrounding unionization, union actions and actions by employers towards workers, whether organized or not, that are considered unfair labor practices; collective bargaining agreements, strikes, labor negotiations and arbitration under a collective bargain ing agreement.Landlord/Tenant Law: concerned with all issues arising out of the landlord-tenant relationship, such as evictions, responsibility for repairs, cleaning deposits, leases and rental agreements, inspections, entries by the landlord, liability for injuries, rent control and similar matters.Media Law: the laws and requirements that pertain to the print and broadcast media, include such items as libel, privacy, censorship, open meeting laws, access to government information and court records, licensing of radio and television stations, and restrictions on television and radio programming.Military Law: all matters under the authority (jurisdiction) of the military, including discharges, en-listment contracts, mandatory registration laws, court martials, pay and pension benefits.Multimedia Law: legal issues created by the development of multimedia products, including copyright, patent, trademark, fair use, permissions, licensing, privacy, libel, import, export, trade secrets, nondisclosure agreements, site licenses and shrinkwrap licenses.Municipal Law: zoning, ordinances, land-use plan-ning, condemnation of property, incorporation of cities, contracting for public improvements, and other matters of local concern.Prison Law: prison conditions, prison disci plinary procedures, parole, constitutional rights of prisoners and adequate access to legal information and medical treatment. (these issues are also often found under the Civil rights, Civil procedure, Criminal procedure and Constitutional law categories.) Property Law: the purchase, maintenance and sale of real estate, easements, adverse possession, landowner’s liability, mortgages and deeds of trust, homesteads, subdivision and construction requirements, and issues arising from land use regulation. (See also Municipal law.) Public Benefits Law: federal and state statutes and cases dealing with federal benefits such as tAnF (temporary assistance for needy families), Social Security (SSA), Social Security disability (SSdi), Supplemental Security income (SSi), food stamps, school lunches, foster homes, Medicaid, Medicare and state disability. See also elder law and unemployment insurance.Public Utilities Law: the duties, responsibilities and rights of public utilities that provide water, telephone service, sewage, and garbage disposal and gas and electric ity.Tax Law: all issues related to federal and state taxa tion of such items as income, property left in an estate, personal property, business profits, real estate, and sales transactions.Tort Law (Personal Injury Law): any injury to a person or business that is directly caused by the intentional or negligent actions of another. examples of commonly known intentional torts, where the person intends the act and knew or should have known that it would result in someone being injured, are: • assault (putting another in reasonable fear of being struck); • battery (the objectionable touching of another without his or her consent); • intentional infliction of emotional distress (outrageous actions affecting another person that the actor knows or should know will result in extreme emotional discomfort); • libel and slander (a false statement made to someone about a third person that has the capacity to harm the third person’s reputation or business);• trespass (entering onto another’s property without consent or legal justification);
• false imprisonment (restricting a person’s freedom ofmovement without legal justification); • invasion of privacy (substantially interfering with the right of a person to be left alone);• malicious prosecution (suing a person without just cause for ulterior motives);• wrongful discharge from employment (under certain circumstances, terminating an employee for improper rea sons); and• breach of covenant of good faith and fair dealing (the bad faith refusal of a party to a contract to perform its obligations under the contract, usually under circumstances where the other party is left personally vulnerable, as in in surance and employment situations).the most common tort of all is called “negligence.” this involves behavior that is considered unreasonably careless under the circumstances and that directly results in injury to another. in deciding whether a given activity is unreasonably careless, the courts must determine whether it was reasonably foreseeable that the kind of injury suffered by the plaintiff would result from the act alleged to be negli gent. Medical malpractice, legal malpractice and most automobile accidents are examples of negligence.Finally, some persons are held liable under tort law for acts that weren’t intentional or negligent. usually some kind of inherently dangerous activity is involved. the legal classi fications are: • Strict liability (holding certain classes of service providers, such as common carriers or persons who operate dangerous businesses, including explosives manufacturers, liable for injuries to persons partaking of the services regardless of whether negligence can be proven).• Product liability (a kind of strict liability that holds a manufacturer liable for injuries caused by unsafe prod-ucts).Trust Law: statutes and cases dealing with how various types of trusts can be created to provide management over property or to preserve a person’ assets while he or she is alive and pass these assets to others upon his or her death. trust law includes such issues as: a) when a trust is revocable (the person creating it can revoke or amend it at will) or irrevocable (can only be changed or revoked by court order); b) how and when the assets in the trust are subject to state and federal taxation; and c) what duties the person managing the trust assets (the trustee) has under state prudent investor rules and general rules for fiduciaries. See estate planning and elder law. Unemployment Insurance: all matters relating to unemployment insurance benefits.Vehicle Law: all matters related to the registration, use and transfer of motor vehicles, drivers’ licenses and noncriminal traffic offenses (legally most traffic offenses are “infractions,” not crimes; however, driving while intoxicated, reckless driving and hit-and-run are usually considered crimes).Veterans’ Law: the treatment of veterans under vari ous federal programs dealing with education, health, dis ability and insurance benefits. Also concerned with the upgrading of less-than-honorable discharges.Warranties: the obligations of sellers of goods and ser-vices to stand behind their products. the law of warranties comes from state and federal statutes and from common law contract principles. (See also Contract law and Consumer law.)Wills: how wills are interpreted and the requirements for making a valid will that effectively allow a person to carry out her desires after her death in respect to her property, her family and any other person or institution to whom she wishes to leave property. (See also estate planning.) Workers’ Compensation:rights of workers who are injured or killed in work-related accidents.
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