Becka Rich
Mary Paige Smith
Eric W. Young
novalltc
William
Steph Hess
mitchsilverman1
Alison
circdude
faerwoman
cpharaoh
RayAndrade
yunascott
akadigjam
nsuwebguyz
Rob Beharriell
douglasedwardsA Theory
For a while now, I’ve been working on a theory about how legal research works. Using legal research tools is a hard paradigm to share with new law students, even ones who have experience with undergraduate research. It may be, as Anne Elk, A. Elk [Miss], put it, “My theory, that I have, that is to say, which is mine, is mine,” (Cough. Cough, cough), but I’d be thrilled if you steal, uh, borrow it, use it—and tell me what you think.
Cars
Every make of car—Honda, Toyota, Chevy, Ford—has parts that do the same things: alternators, starters, fuel injectors, fuel pumps, for instance. But parts from a Toyota won’t work in a Chevy, and so on. That’s because the parts do the same things, with different shapes and sizes and connectors. And remember: All those parts are supposed to connect: fuel injector, fuel pump, gas tank. But if you want your car to work right, all the parts have to connect together properly.
Research tools
There are a lot of different projects you might be doing legal research for. You might be working on a memo for LSV; a pleading or brief for an employer, moot court, or mock trial; or a seminar or law review paper or research for a professor. Like cars, all of the projects are similar, and go forward in similar ways. But, also like cars, they look different (trucks, economy cars, sports cars, SUVs) and have different uses.
And you will find a lot of different “things” (sources of law, or just “sources”) when you do legal research: constitutions, cases, statutes, regulations (kind of “junior statutes”), and lots of different types of secondary sources, like law review articles, legal encyclopedia articles, digest summaries, and case annotations.
These “things” are found in different research tools, in books and online: annotated statutes, case reporters, journals, legal encyclopedias, digests, and American Law Reports.
All of these research tools have the same parts. The books have tables of contents, indexes, and tables of cases. The Web resources have basic and advanced search functions, tables of issues and articles. But the parts don’t work exactly the same way… because just like an alternator from a Chevy and a fuel pump from a Honda, neither the resources nor the parts themselves are interchangeable.
But—and this is important—just like a working Honda’s fuel pump and gas tank, the parts are also connected, forward and backward, by the references and citations.
Connections
Use connections. The alternator connects to the battery. The connection runs both ways—and won’t work either way unless there is a connection.
Citations aren’t just something you have to use the Bluebook to figure out how to format. Look at the citations in the “things”—sources—you have, and use them to find other sources. Looking at citations in your sources, and the different sources they cite to, lets you figure out what all the sources you have to say about each other. Sources are written by people (obvious, I know). People disagree. Some disagreements get resolved—when a higher judge disagrees with a lower one. But some don’t—when two judges at exactly the same level, or in different states, disagree.
Reverse Engineering
Oh, about the Bluebook. Think of it as being the shop manual for your car. One use for a shop manual is to figure out how to put a new fuel injector in your car. But you can also use the shop manual to take the car apart, or find a part number for the new cylinder-head gasket or fuel-tank float you need.
You’ve been taught, or learned, to use the Bluebook to look up how to format a Georgia Supreme Court citation, for example. But if you have a citation that you can’t completely figure out, but you’re pretty sure is from Michigan (because it has “MI” or “Mich.” in it) or Colombia (“Colom.”, ditto), use the Bluebook’s tables to look up the citation format. (There’s a general rule of thumb here: As a favorite writer of mine put it, “[W]hen faced with a problem you do not understand, do any part of it you do understand, then look at it again.”)
Other Places to Look
There are different shop manuals for different cars, right? Some jurisdictions have their own “shop manuals.” Florida, for instance, has two: An official one, Fla. R. App. P. 9.800, “Uniform Citation System,” and a semi-official one, the Florida Style Manual, that Fla. R. App. P. 9.800(n) tells you to use if Fla. R. App. P. 9.800 doesn’t have the citation style you need.
Postscript
I really like this “theory” (an extended metaphor, really), for its usefulness and concision. I also think it’s very pedagogically interesting. I plan to do some research on that aspect for a follow-up blog post. Anyway, that’s my theory. Please let me know what you think—post a comment, or email me at silvermanmi@nsu.law.nova.edu.
