Voll. 40 No. 2
ByShawn G. Nevers
Shawn G. Nevers teaches legal research and is head of reference services at the Howard W. Hunter Law Library at Brigham Young University.
While case law has the run of the law school curriculum, statutes are often relegated to secondary status.
Don’t get me wrong. Case law is critical for legal research. But law school has an almost obsessive relationship with case law that dates back to Christopher Columbus Langdell and the Socratic Method. While case law has the run of the law school curriculum, statutes are often relegated to secondary status. There are reasons for this—including the especially compelling “statutes are mind-numbinglyboring” argument—but what concerns me is that law students rarely get a realistic view of how important statutes will be in practice.
The fact is statutes govern much of what we do. We live in what one professor once called “the age of statutes.” At the state and federal levels, legislatures are producing law at ever-increasing levels. The U.S. Code, for example, ballooned from one volume in 1926, to sixteen volumes in 1976, and then to thirty-six volumes in 2006. New areas of law are being legislated, and even old areas of law that used to be covered almost entirely by the common law, such as contracts and real property, are often now the topic of statutes.
So, what does this all mean for you, the legal researcher? In short, it means that there’s a good possibility that a statute applies to your issue—and you better find it. Even when you’ve found some good case law on a topic, don’t stop there. Always make sure you’ve covered your bases and take a look through the statutes. In fact, in certain situations it may be beneficial to start your research in the statutes and secondarily (gasp!) head to case law.
Researching statutory law was easier back in the days when there wasn’t much law to sift through. Luckily, nowadays there are several different ways to research statutes that can help compensate for the glut of legislation. The biggest advantage today is the ability to search statutes electronically. State and federal codes show up in all the usual places, like Westlaw and Lexis, but statutes are increasingly available for free on the Internet as well. To save some money, consider taking a look at the U.S. Code on Cornell’s Legal Information Institute website or at a state code on a state government website to get you started.
While keyword searching is the research tool most preferred these days, it’s wise to keep in mind other options when searching statutes. The reason? Have you read a statute lately? Statutes often use technical language that mere mortals like myself may not think to search for. For example, last summer’s debt ceiling legislation, the Budget Control Act of 2011, spun such phrases as “sequestrable budgetary resources” and “nonexempt outlays.” As you progress in your legal career, you’ll become familiar with the terminology of your field, but as a law student or young lawyer, these types of keywords may elude you.
Often what’s needed to solve this problem and research statutes effectively is a subject-based tool, such as an index or a table of contents. These tools are available in print, but also online as well. Lexis provides a table of contents for state and federal codes, while Westlaw includes both an index and a table of contents for each. While some researchers rely on the statutory tables of contents, I generally prefer an index. Whichever you choose, the key is remembering that these tools are part of your research arsenal. If you’re not finding what you want with keyword searching, make sure you take a look at a table of contents or index.
When researching statutes, it’s important to understand that statutory sections are often interrelated. Once you find a section related to your issue, always take a look at other sections nearby. You may find that they are also on point or at least help you understand how your section should apply.
For example, let’s say your research leads you to 29 U.S.C. § 212, which requires employers to avoid using “oppressive child labor” in their production of goods for commerce. That’s helpful, but it doesn’t give you the full picture. If you take a step back, either by looking at surrounding sections or examining the table of contents, you’ll notice that §203 provides definitions applicable to your section. Specifically, it provides a detailed definition for “oppressive child labor” that is essential for interpreting § 212.
Further examination will lead you to § 213, which provides important exemptions to § 212—including the fact that it doesn’t apply to child actors—which you must be aware of to apply the law correctly. This is all research you must do yourself because the legislators haven’t done you the favor of indicating in § 212 that these two other sections are important to you. Apparently, that would be too much to ask.
The ease of discovering these related sections by browsing has led many practitioners to continue using statutes in print. It’s likely you will still witness print codes at your legal job even when they are also available online. Don’t worry, you don’t have to touch the print if you don’t want to, but if you’re having trouble visualizing how things fit together online, don’t be afraid to step away from the mouse and have a look at the print.
A discussion of researching statutes wouldn’t be complete without spending a few words on an incredibly important research tool—annotations. As you’re likely well aware, annotations are the little blurbs of cases and other materials that follow a statutory section. They are references to various legal materials that interpret or explain your section in some way. And, because often what you are trying to do is see how a statute applies, these annotations are pure gold.
If we take another look at the “oppressive child labor” statute, we’ll find that Westlaw’s version of the U.S. Code, the United States Code Annotated, provides 32 “Notes of Decisions” in which cases have interpreted our statute in some way. It’s important to remember that these aren’t all the cases that have cited our statute, just some of the more important ones. If you want all the cases, you’ll need to head to Shepard’s or KeyCite. KeyCite, for example, shows 157 cases that have cited 29 U.S.C. § 212.
Much of what I’ve mentioned here applies to state statutes as well. As is typical with state materials, at a base level they are similar from state to state, but each has its own quirks. When you figure out where you’ll be working, it’s a good idea to snuggle up with your state code and get to know it a bit better. You two will be spending some time together. Because, while case law may be king in law school, outside the ivory tower statutes are a rival to the throne.