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Introduction by Research One

The following article on US primary research material is current as at 3 March 2003. For reasons of space, footnotes that appear in the original version have been omitted. Links have been inserted by Research One. The original formatting of the article has been adopted as far as possible. The views of the authors do not necessarily reflect the views of Research One.

Gary D Meyers and Nerida Gilbert, 'Primary Sources: A "Not-So-Anonymous" Review of US Legal Research Materials and Sources' (2003) 11(1) Australian Law Librarian 12 (reprinted with permission).

(Use of this article is subject to our usual terms and conditions.)

INTRODUCTION

As the title suggests, this article is intended to provide a broad overview of the primary sources of information for researchers interested in the US legal system. We confine our review largely to federal law and federal research sources, though it should be noted that many of the sources of information identified in this paper have their counterparts at the state level. Moreover, as we discuss access to these sources (particularly, electronic access), those points of access may also include access to state law, cases, and commentary.

Our intent is essentially twofold: first, to identify those research sources which are essential for those interested primarily in US statutory law; and second, in an age when the volume of materials is increasing in tandem with their cost, to identify electronic means of accessing those research sources. We begin, however, with a brief description of the US judicial system to help set our discussion in context.

THE US LEGAL SYSTEM

Federal courts

Given their shared heritage as former British colonies with legal systems founded in the tradition of English common law and the fact that both countries are federations (like Canada but unlike New Zealand which is a unitary state), it should not be surprising that the US and Australian legal systems share many similarities. There are also some significant differences. Moreover, given that the Australian legal system is often referred to as a 'Washminster' system, Australia having borrowed heavily from both the UK legal system and the US Constitution in drafting its own constitution, those similarities are arguably systemic. Thus, the judicial system in the US looks much like that of the judicial system in Australia, containing both state and federal courts of general and limited jurisdiction and having trial and appellate functions (typically separated at both the state and federal level in the US). Many Indian reservations in the US also have their own tribal courts, with jurisdiction that is distinct from that of the states in which they are situated.

There are three levels of federal courts in the US (along with a very few specialty courts, such as the Federal Bankruptcy Court, US Court of International Trade, and the US Claims Court, which hears monetary claims against the US). The United States Supreme Court is in fact created by the US Constitution. Article III of the US Constitution provides that, '[t]he judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish'. The US Supreme Court is the United States' highest court and has both original (limited by the Constitution to certain matters) and appellate jurisdiction. That appellate jurisdiction extends to reviewing the decisions of both lower federal courts and to the decisions of state supreme courts (which unlike Australian supreme courts are almost always limited to appellate jurisdiction). Federal Judges in the US have life tenure, and there is no mandatory retirement age.

The principal 'inferior' federal courts that Congress has ordained to establish are the United States District Courts and the United States Courts of Appeals. Unlike the case in Australia, these courts are established geographically. Every state has at least one US District Court for that state while in some states, US District Courts are distributed by region within the state. Similarly, the US Courts of Appeals are divided into circuits covering regions within the US. The US Capitol, Washington DC, has its own District Court as well as its own US Court of Appeals. US District Courts are courts of general jurisdiction hearing both criminal and civil matters (including administrative matters involving private, state, or municipal plaintiffs and federal agencies) that are matters of federal jurisdiction. US Courts of Appeals, sitting in panels of three judges, hear only appeals from District Court decisions within their assigned circuits (regions).

As noted, the US Supreme Court is the final arbiter of federal and constitutional questions of law. And as observed, its jurisdiction is almost exclusively appellate. Typically, a determination to review a decision of a Circuit Court of Appeals or state supreme court is made via a writ of certiorari. The US Supreme Court receives between 1500 and 2000 such requests each year but generally, grants around 10% of those requests, hearing perhaps 130-150 cases each year. The Court has no advisory jurisdiction; it is, however, possible for the Court to exercise its 'removal' jurisdiction and hear cases directly from a US District Court or state supreme court, thereby bypassing either or both lower federal courts.

Decisions of the federal courts are usually reported, including trial court decisions by US District Courts (unlike the overwhelming majority of state trial court decisions). The official reporter for the District Courts is Federal Supplement (Fed Supp), the official reporter for Courts of Appeals is the Federal Reporter (F or now, F 2d), and the official reporter for the Supreme Court since 1875 is United States Reports (US). Additionally, there are three unofficial reporters for the US Supreme Court, the oldest being Lawyer's Edition/Lawyer's Edition 2d (L ED/L Ed 2d) operating since 1790, followed by Supreme Court Reporter (S Ct) since 1882, and United States Law Week since 1933 (USLW).

A brief note on state courts

State courts in the US are organised similarly to federal courts. There is always at least one court of general jurisdiction, i.e. a trial court and an appellate court. Typically, the trial court has a superior and inferior court (which hears lesser criminal matters or civil cases up to a specified damages amount), and the court of general jurisdiction may be comprised of specified divisions for example, juvenile matters or family matters. It is becoming more common for states to have intermediate appellate courts as well, thereby reducing the load of the highest state court, which in all jurisdictions except New York is the State Supreme Court. Trial court decisions are rarely reported, rather it is the decisions of State Supreme Courts and intermediate courts of appeals that are reported in each state. There are official reporters for each state, however, there is a system of regional reporters covering decisions from a number of states, which are also recognised as official reporters.

ESSENTIAL RESEARCH SOURCES

The United States Code and the US Code of Federal Regulations

The essential starting point for research on US laws is the United States Code (USC), or more usefully, the United States Code Annotated (USCA), and the Code of Federal Regulations (CFR) which compiles the administrative rules adopted by executive agencies as directed by statute. Every law passed by the US Congress and signed by the President is given a Public Law number corresponding to the particular sitting of Congress, followed by a number. Thus the first law passed by the 110th Congress would be given the number 110-1. These laws are then incorporated into the USC. The USC is organised by 'Titles;' beginning with Title 1 (General Provisions - The Congress) and running alphabetically through subject matter to Title 50 (War and National Defense). Title 1 is preceded by volumes dealing with the US Constitution, arranged by 'Articles' in the Constitution and the various amendments to the Constitution. Title 50 is followed by Statutory Supplements, arranged by year, prior to their codification or publication in new bound volumes. The USCA tracks this organisation exactly. Unlike the case in Australia where statutory reprints are irregular, these volumes (Titles) are republished regularly, thus if a particular statute has been amended, the amended version is reflected in the USC and one does not need to assemble a series of Acts to determine the current state of the law.

The beauty of the USCA is its annotations. These general annotations for each major act include: cross references to other laws (by title and section of the USC) which reference the applicable title and section under library references such its legal forms, commentaries, and texts; and on a section by section basis, historical and statutory notes which effectively provide a cumulative legislative history for the particular act; a list of all amendments over time, cross references to other laws, library reference to applicable sections of the CFR, legal forms, digests and encyclopedias and a list of law review and commentary articles, and finally, notes of decisions construing the particular section listed by keywords such as constitutionality, treaties, Indian lands. (Do not forget to check the 'pocket part' at the end of each volume which supplements the information in the bound volume, i.e. provides an updated list of judicial decisions construing the various sections of that title.)

The CFR is also important. (Regulations adopted by the various executive agencies (i.e. Cabinet Departments and their various sub-components) in the US are equally important.) Much of the federal civil litigation in the US is concerned with agency interpretations of their own enabling laws, i.e. regulations adopted pursuant to particular laws. Thus the 'Regs' are critical to understanding the 'law.' However, as indicated above, the USCA will direct the practitioner/researcher to the applicable regulations and the annotations will direct the practitioner/researcher to the judicial interpretation of those regulations. As will be discussed below, the CFR is also available electronically.

The Congressional Record and 'legislative history'

There are two other research sources for federal law which are important. The first is the Congressional Record (daily and weekly versions). The Congressional Record is not only a record of daily happenings in Congress analogous to Hansard; it also provides information regarding the adoption of regulations and administrative rules/agency rulings. Typically final regulations or actions, such as the adoption of an environmental impact statement (EIS) are preceded by drafts with opportunity for comment before adoption and publication in the Congressional Record. Specialised practitioners will want to track this activity and the most useful means of doing so is through the Congressional Record (which, as discussed below, is available electronically).

The second general federal reference source to be discussed is the US Code Congressional and Administrative News (USCCAN). This multi volume reference tool contains the legislative history for all laws passed by Congress. It is organised into volumes by each congressional sitting, i.e. 100th Congress, 1st session and 2nd session. As indicated above, the USCA annotations include references to any House, Senate, or Joint House and Senate reports on legislation adopted by Congress. These reports and other legislative history (including any hearings or special reports) are compiled in USCCAN. While legislative history, e.g. what a particular cabinet minister thought a bill meant as it passed Parliament in Australia, may be relatively unimportant in the Australian High Court, the case is far different in the US. Often, Supreme Court and lower federal court jurisprudence is filled with references to the legislative history, and not just to the House and Senate Reports, but what a bill's floor manager or Committee Chairman thought the bill meant as it passed is relevant material for judicial consideration. Thus, the legislative history compiled in USCCAN is potentially critical for any practitioner/researcher delving into US law.

Specialised sources

There are in the US, as in Australia, a number of specialised sources for practitioners in various legal sub-specialties. For the purposes of this paper, we will only briefly mention two which may be of interest to large commercial firms. First, is the Uniform Commercial Code. That code can be found in Uniform Laws Annotated (ULA), which operates similarly to the USCA, thus providing commercial practitioners and comparative lawyers with similar research and resource support. Second, Commercial Clearing House publishes a number of specialty publications, among them the CCH Federal Securities Reporter, which is an essential research guide/source for those firms whose practices extends to securities trading in the US or for lawyers and firms engaged in comparative legal research.

FEDERAL 'COMMON' LAW, STATE LAW, AND GENERAL RESEARCH MATERIALS

As observed earlier, the legal system in the US states is organised comparably to that of the federal system. Thus, many of the research sources for federal law have their counterparts in each state. In sum, state laws are codified and the codes are generally annotated with references to state regulations, forms, and legal decisions which interpret state statutes. Additionally, there is what might be called a US common law, that is law and legal interpretation common among the states (as well as a distinct body of federal common law, as declared by the US Supreme Court and other federal courts).

A number of the digests, encyclopedias, and treatises referenced in the USCA are equally, and perhaps, more useful for understanding this US common law. Some of the more important and useful sources include American Law Reports Annotated (ALR), American Jurisprudence (AM Jur), Corpus Juris Secundum, and the Decennial Digest. Typically, these research materials are organised alphabetically and topically and include keyword access; some, like Am Jur, may be organised by subject, e.g. constitutional law. Their usefulness arises from their ability to provide a quick overview of common state practice. In particular the 'Restatements,' e.g. Restatement of the Law of Property, Restatement of the Law of Torts, Restatement of the Law of Contracts, are not only useful for accessing this common law but may be accepted as particularly persuasive legal authority.

Finally, we want to mention three additional research sources on US law. The first is actually what might be called a research support source: The Bluebook: a uniform system of citation, compiled by the editors of the Columbia Law Review, Harvard Law Review, University of Pennsylvania Law Review, and Yale Law Journal. Not only does it provide a uniform legal citation guide for researchers and practitioners, it also offers a comprehensive guide to courts, tribunals, etc, within the various US jurisdictions, including a list of official reporters by jurisdiction.

Second, Shepard's Legal Citation Service, available on Lexis, is a useful tool to track legal precedent. Using Shepard's, that is, 'Shepardising' a case by its citation, allows a legal practitioner to determine how that case has been dealt with by other courts. While the USCA may annotate important cases which interpret a particular statute, it can not annotate all cases, particularly when a statute has been heavily litigated.

However, using Shepard's the practitioner can determine how a particular Federal District Court or Circuit Court has interpreted key cases. Similarly, a leading case in a particular area of law (whether at the state or federal level) can be 'Shepardised' to determine how various state or federal courts have either followed or distinguished its principles in applying that body of common law.

Third, the final source to be discussed is the Index to Legal Periodicals (ILP). The ILP is published in soft cover, once a month except for September. A hard cover volume is published annually. The ILP is the key access point for law journal articles published in the US. However, its reach is now much broader encompassing the major law journals published in Canada, the UK, Australia and New Zealand. Journal articles can be accessed via author, title, subject matter, or keywords and as discussed in the next section of this paper, it is available online. Access to ILP is as essential as access to the USCA for any researcher or practitioner interested in US law.

The most useful version of ILP is one the practitioner, researcher, or librarian can design for him or her self or a particular law firm: Smart CILP (Computerised Index to Legal Periodicals). Published by the Marian Gould Gallagher Law Library at the University of Washington Law School, Smart CILP allows one to construct an individual research profile using particular journals, topics, or both. Each week the researcher receives an advance list (remembering that the published volume only appears monthly) of all articles published in journals catalogued by the ILP that fit within the individual's research profile. And, as of 1 August 2002, those articles listed in an individual's Smart CILP document now have a direct link (via either Westlaw or Lexis) to the electronically copy of the law journal article.

ELECTRONIC ACCESS TO ESSENTIAL RESEARCH SOURCES

The electronic sources of US legal information are extensive and provide very wide coverage, particularly for current information. For the purposes of this paper, we are focusing on online services that are available as either publicly accessible sources or as subscriber services. Web-based, publicly accessible sources range from government web sites such as the Government Printing Office (GPO) to sites emanating from university institutions, such as the excellent site maintained by the Legal Information Institute of Cornell University Law School (LII). While there are numerous providers of free research sources on the Internet, this article focuses on a smaller number of sites that have provided consistent and reliable information over a number of years.

In addition to these free Internet sites we also review the online subscriber services of Lexis and Westlaw. The main difference between the free resources and the subscriber services is the availability of analysis, commentary and annotations. These 'add on' services are much more accessible when researching in the online medium.

With a subscriber service, the user is able to obtain all the relevant information from one source. However, where the practitioner or researcher only requires the text of a particular bill, act, or case, the free services on the Internet provide an invaluable and cost efficient tool.

Legislation Proposed legislation

The best free sources for locating information about bills are the Library of Congress's site Thomas and the Government Printing Office (GPO) Access site for congressional materials. Thomas has the full text of bills from the 101st Congress (1989/90) and bill summaries going back to the 93rd Congress (1973/74). The default search is for the current Congress (107th) with earlier sessions available in the on screen menu. A search can be run by the bill number or through a full-text keyword search. With two or more keywords, Thomas ranks relevancy first as a phrase, with the least relevant being either word appearing in the text. The bill text is available in html text or as a pdf download. For the US counterparts of the Australian Parliament's explanatory memorandums and debate reported in Hansard, use the Committee Reports and Congressional Record.

Bill information on Thomas includes links to relevant Committee Reports and entries in the Congressional Record. The GPO site provides access to all these publications, however, it is not linked to the extent of the Thomas entries. The coverage of Thomas is slightly greater than GPO.

Lexis and Westlaw both provide access to these materials. The coverage is generally greater than the free services with the added benefit of annotations and more sophisticated search options.

When using these subscriber services the researcher would most often be viewing this information retrospectively, for example, by linking back to the legislative history from the annotations in the Code. It is here that the online services of Lexis and Westlaw are of greatest benefit via hyperlinked cross-referencing.

Session laws

Once a bill is signed by the President it is assigned a public law number. Public laws are sent to the Law Revision Council to officially determine which sections of the US Code are affected. At the completion of each session of Congress, these laws are compiled in the Statutes at Large. Free access to public laws is again available through Thomas and GPO. The keyword searching on GPO is more extensive than Thomas, allowing a search by subject, public law number, statutes at large citation, USC citation, or bill number.

Lexis contains public laws from the 100th Congress onwards. This service also provides links to their Bill Tracking Report, enabling the researcher to see the path the bill took through the legislative process. Links are provided to related topics allowing the practitioner/researcher to access any articles available on the particular law. Westlaw has public laws from 1973 in addition to the US Code Congressional and Administrative News which was identified earlier as an essential resource.

The Code

General and permanent public laws are incorporated into the United Stares Code, which is published every six years. There are numerous internet sites providing access to the text of the Code, however the site maintained by the Legal Information Institute of Cornell Law School is widely regarded as one of the best free sources of the USC. It allows a number of search alternatives. Most useful are browsing through the alphabetical 'table of popular names,' or the subject titles. Searches can be conducted by keyword or USC citation. Each section provides a list of hyperlinks to notes, updates and parallel authorities (e.g. the CFR), in addition to a link to topical references by the LII in the subject relating to the section being viewed.

The Code - annotated

As noted above, the provision of extensive annotations to judicial interpretation, legislation and articles proves an invaluable tool to the researcher of US law. Due to the extensive coverage of the Annotated Codes, many researchers would 'bypass' the previous access points, as the online versions provide direct links to the relevant legislative history. The United States Code Annotated is available on Westlaw and provides all of the services of the print version with the advantage of online searching and the flexibility of linking and viewing cases interpreting a section of the Code. It also links to relevant databases such as USC Legislative History (LH) and the CFR.

Another version of an annotated Code is provided by Lexis - the United States Code Service. The differences between the two annotated Codes are minimal. The annotations sometimes vary as each publisher focuses on cross referencing to other publications in their own collections (for example, the USCA extensively cross references to the USCCAN). Arguably, at least in the online medium, the USCA is preferable as there are more active links to the cases given that West dominates the publishing of law reports in the US.

Delegated legislation (Administrative Regulations)

Free access to the Code of Federal Regulations is available through GPO. This site offers the ability to search by keyword, citation, or to browse. It also has a table of parallel authorities and a link to the 'list of CFR sections affected' to check currency. The CFR volumes are available online at the same time as the paper edition is released. Previous editions can also be searched. The CFR may also be accessed from Cornell where the search options are similar to that of the US Code, in addition to the services provided by Lexis and Westlaw.

Uniform Commercial Code (UCC)

The UCC is available at the Cornell LII site, however, there are some limitations to the service due to licensing agreements. The UCC library on Lexis contains state and federal case law and statutes pertaining to the UCC. Westlaw's files contain official text, cases, records and commentary and the Uniform Laws Annotated.

Case law

The US Supreme Court

In recent years, the opinions of the Supreme Court have become available on the Internet. These decisions can be accessed from a number of sources including: The US Supreme Court home page, Project Hermes at Cape Western Reserve University, GPO, and the LII site at Cornell. Cornell also has a selection of historic cases, over 300 which have been identified as important cases to US history. These historic cases can be searched by keyword, or the user can browse the groupings either by topic or alphabetically under author or party name. Selected cases going back to 1937 are also located at the FedWorld Site.

The US Supreme Court only allows counsel 30 minutes for argument, so the brief submitted to Court prior to the case being heard provides useful material regarding the facts of the case and the legal reasoning behind the argument. The texts of briefs are now available free on the Internet for cases heard from 1999 onwards at the FindLaw web site. This material is also available on Lexis with briefs going back to 1979 and on Westlaw which has texts from 1990. The transcripts of oral argument are available from the Supreme Court web in addition to Lexis and Westlaw.

Circuit Courts of Appeals and US District Court decisions

As with the opinions of the Supreme Court, there are a number of access points for cases from the Federal District Courts and the Circuit Courts of Appeals. The following is by no means an exhaustive list. The Villanova University's School of Law has a comprehensive listing of federal courts as part of its Federal Court Locator. Cornell provides a search facility for the Circuit Courts of Appeals and FindLaw is another source, allowing the user to search or browse by circuit.

American Law Reports - annotated

The multi-volume American Law Reports are organised by issue, that is, the various annotations attempt to collect all the relevant authority regarding a particular substantive topic as a guide to the legal researcher. Thus, they are an important starting point for common law research. The ALRs (from the second series onward) are accessible through both Lexis and Westlaw.

Federal Securities Law Reporter

Lexis has a CCH Incorporated Securities library which provides coverage of the Federal Securities Law Reporter. Westlaw no longer provides access to the CCH Reporter but does have a comprehensive library of Federal Securities and Blue Sky Law.

Shepard's and other secondary sources

As observed, the practice of 'noting up' cases in the US is done with the Shepard's service. Shepard's is accessed through Lexis. Navigational features include the use of coloured symbols to indicate treatment, and large visual features to restrict citations and choosing KWIC [Key Words in Context] or full format for text. As with any online service, the main advantage lies in the ability to quickly cross to annotations through direct hyperlinks. There is a shortcut to 'Shepard's - Check a Citation' on the front page of Lexis and a number of additional features, such as an online tutorial for the first time user in Shepard's and the Table of Authorities.

The Westlaw counterpart of Shepard's is the KeyCite service. There are some differences in currency, availability of recent citations and coverage of case law.

As is the case in Australia, one starting point far research on US law is often the legal encyclopedias. American Jurisprudence and Corpus Juris Secundum were identified earlier and these are available online. Both Lexis and Westlaw provide access to American Jurisprudence, however, Corpus Juris Secundum has only limited online coverage and only with Westlaw.

The Restatements of Law are published by the American Law Institute. Access via Lexis covers the Annotated Case Citations, Rules and Table of Contents. Westlaw also provides access.

Access to the Index to Legal Periodicals is also provided by the online subscriber services. Lexis provides access to ILP issues from 1978 onwards, while Westlaw's coverage begins in 1981. Subscription to the Current Index to Legal Periodicals is available through the Marian Gould Gallagher Library at the University of Washington School of Law. Westlaw also provides access to the most recent (eight weeks) issues of CILP.

CONCLUSION

Following a summary view of the US court system to set our discussion in context, we have attempted to provide a brief overview of the most important research sources for federal law in the US, which in many instances, also serve as research sources for common law and state law questions. Equally, or perhaps, more importantly, we have attempted to provide a guide to accessing those resources via free and subscriber-based electronic providers. Practice may well not make one perfect, however, the key, in our view, to successfully using those resources lies in their continued use. Each of the resources canvassed and the methods of access has advantages and disadvantages which we have attempted to highlight. Hopefully, familiarity with any particular resource and the means of access breeds comfort rather than contempt, but that assessment must be left to individual practitioners and researchers, as well as librarians who will often be the first point of contact for the researcher or practitioner with a US legal question.

Further reading
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