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:
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:
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.3 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.4 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.
When your legal research involves case law (or common law), it is important to know something about the significance of precedents or the doctrine of stare decisis, which refers to “adhering to or abiding by” settled decisions. Simply put, lower courts are bound to follow decisions of higher courts in the same jurisdiction. For example, a federal district court in Maryland is required to follow the decisions of the Fourth Circuit Court of Appeals and the U.S. Supreme Court, but it is not bound by the decisions of other district courts or by the Maryland state courts. Historically, this doctrine has hindered women in the courts, because once a precedent has been set, it is difficult to receive a different ruling unless the law that the judges or justices are interpreting is itself changed. Recently, however, stare decisis has been one of the major reasons that women have won cases concerning employment in the courts. Many precedents based on Title VII of the Civil Rights Act of 1964 favor women.
State legal materials resemble federal legal materials in many ways, but there are differences in the types of publications in which they are readily available. The nature of legal materials and publishing practices may differ depending on jurisdiction. Resources on the federal level are easier to obtain because materials are published by both private and government publishers. U.S. Government Printing Office (GPO) publications are readily available in government depository collections in libraries across the United States. Each state, however, follows its own publishing practices.
Differences are especially significant in the publication of court decisions. Many decisions regarding women's issues have been rendered on the trial level in state courts, and few state trial court decisions are published, because they do not establish legal precedent. Other cases, such as some civil suits, are settled out of court, and there is no official publication of the proceedings or the terms of the settlement. Further, attempting to trace a particular piece of state legislation to its origin in colonial times can be difficult because of imprecise terminology and inconsistent publishing practices.
Court systems vary depending on whether they are federal or state. All court systems have two major levels: a trial court (district court) and a court of last resort (supreme court). Some have an immediate appeals court (court of appeals). The court system may also include various special courts that have limited jurisdiction. The federal system has three levels (district courts, courts of appeal, and a supreme court), whereas the District of Columbia, for example, has only two (the Superior Court and the Court of Appeals).
A suit is initiated in a trial court. If someone chooses not to accept the decision of the judge and jury, he or she can file an appeal in the immediate court of appeals. This court will affirm (support) the trial court's decision or reverse it. That decision can then be appealed to the court of last resort. Unlike the immediate court of appeal, to which citizens have a right to appeal, the court of last resort must be petitioned. The judges or justices determine whether or not they will hear the appeal. A state supreme court decision can be appealed to the United States Supreme Court.
Decisions rendered by judicial bodies are published in reporters (or reports), which vary in type. Again, it is important to remember that not all judicial opinions are published. There are reporters for all levels of federal courts, and virtually all of the opinions of the state courts of last resort are published. State immediate appellate court decisions are generally published. State trial court opinions, however, are rarely reported, but New York (in its Miscellaneous Reports) and Pennsylvania (in the Pennsylvania District and County Reports) do publish such decisions selectively. Most other state court decisions and any trial transcripts must be obtained through the clerk of the court in the specific jurisdiction where the trial was held.
Court records and briefs can be used to get background information on a specific court opinion. The Law Library of Congress has records and briefs for most U.S. Supreme Court opinions from 1832 to the present in both print and microfiche, as well as the privately published Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law.5
Because court reporters are arranged chronologically, digest systems must be used to find court decisions by subject. Each of the major legal publishing firms has its own digest system. The most widely used of these is the American Digest System created by West Publishing Company.6 This standard system of subjects and topic areas is used in all of the company's digests, including digests for each jurisdiction and various subject digests, such as the Merit System Protection Board Digest. In addition, table-of-cases volumes can be used when the parties to litigation are known but the legal citation is not.
Statutory law can be found in two types of publications: compilations of statutes or codified laws.7 Both the compilations and the codes have the same wording, but their formats are different. A federal law is given the number of the U.S. Congress that passed it and a second number that represents the chronological order of its passage. “Pub. L. 88-352” indicates the 352nd law passed by the 88th Congress. After passage, a law is codified, or published according to its subject category. Public Law 88-352 can also be found in the United States Code, where the citation is 42 U.S.C. § 2000e et seq. Remember, though, that not all laws are codified.
If you are looking for statutory law on a general subject, the code is the best place to look. A code usually has a multivolume index that includes the codified laws, which are published there with amendments integrated into the original law, as currently in force. Public laws, however, are separate entities—the original law and each of its amendments remain separate. There is no general index to them. To find a specific public (or session) law, you need to know either the Congress that passed it or the year it was enacted, because indexes are published only at the end of each session of Congress.
To get a clearer picture of the passage of a law, the underlying legislative intent, and any political ramifications, it is often necessary to consult legislative history materials. These are primarily committee reports, hearings, and debates. Committee reports and hearings are published either as separate entities or in compilations. Debates are found in the United States Congressional Record. Again, federal legislative materials are easier to find, for most states do not actively publish these materials. To locate these state materials, find out whether the state legislative branch has a legislative reference bureau or library available to you.
The Law Library has the entire range of debates occurring on the floor of the House and Senate as part of the Century of Lawmaking digital collection:
Administrative agencies serve two major functions: rule-making and adjudication (or enforcement). The rules and regulations of administrative agencies and executive documents are generally published in a register and compiled in a code. For example, federal materials are published in the Federal Register (F.R.) and the Code of Federal Regulations (C.F.R.). The State of Michigan publishes the Michigan Register and the Administrative Code of Michigan. Decisions rendered by an agency's adjudicatory body may be published as well. If a decision or order is not published, anyone wanting a copy must contact the agency to receive it.
As in searching for laws, the general subject of a regulation can be searched in the general index that a code provides. To find a rule or regulation in a register, the researcher should know the date of the final regulation or the year of enactment. Most registers have no general index that covers all regulations currently in force.
Links in the following notes will take researchers to the corresponding entries in the Library of Congress online catalog. Sources linked in previous note sections will not be re-linked.