American Legal Materials
The US Constitution is central to an understanding of the American legal system. The original 1789 Constitution consists of the Preamble and Articles I through VII. The original Declaration of Independence is not a constitutional document. In 1791, Amendments I through X were added to the Constitution. At least the first eight amendments and probably the first ten amendments are collectively known as the Bill of Rights. There are presently 27 amendments to the US Constitution.
Originally the Bill of Rights only applied to the federal government, but as a result of how the cases interpreted Amendment XIV, these rights also bind the state governments.
Freedom of speech is contained in the 1st Amendment; due process is mentioned in both the 5th and 14th Amendments; equal protection in the 14th Amendment is interpreted to be included in the 5th Amendment; search and seizure is listed in both the 4th and 5th Amendments, and has been incorporated as part of due process in the 14th Amendment.
DUAL COURT SYSTEM
The United States has two separate and distinct court systems that exist side by side. The US Constitution, Article III, section 1 states that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may authorize. Thus Congress can legislate the existence and jurisdiction of federal inferior courts below the US Supreme Court level. Under the general residual power left to the states by the Tenth Amendment, all other cases are tried in the state courts.
In order to research US law, one must have an appreciation of both the federal and state court systems. Many legal materials are organized around this distinction.
1. Federal Court System
For further information, see Understanding the Federal Courts from the United States Courts.
Jurisdiction of Federal Courts
The US Constitution, Article III, section 2 outlines the jurisdiction of the federal courts:
- Controversies to which the US is a party.
- Controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states.
- Cases affecting ambassadors, ministers, consuls; cases between a state or its citizen and foreign states, its citizens, or subjects.
- All cases in law and equity arising under the United States Constitution, laws of the United States, treaties, and cases of admiralty and maritime jurisdiction. Under these provisions the United States courts decide cases involving the Constitution, laws enacted by Congress, treaties, or laws relating to navigable waters.
US Supreme Court
The jurisdiction of the highest US court is:
- exclusive jurisdiction involving disputes between two or more states, or where a foreign state is being sued;
- concurrent jurisdiction with lower federal courts involving disputes between the US and a state, disputes between a state and citizens of another state or aliens, or where a foreign official brings a suit;
- appellate jurisdiction involving:
- review by appeal (a matter of right where a lower federal court has invalidated a state statute, or where a highest state court has upheld a federal statute);
- review by certiorari (a discretion in the US Supreme Court to hear a case involving an important federal question);
- review by certification of any question of law (a request by a US Court of Appeals for instructions); and
- special writs may be granted, e.g. habeas corpus to compel a lower court to act or to prohibit.
United States Court of Appeals
There are presently 13 different circuits. They review all final decisions and certain interlocutory decisions of district courts within their circuit, review decisions of the tax court, and review decisions of federal administrative boards.
|Circuit||States & Districts Covered|
|First||Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island|
|Second||Connecticut, New York, Vermont|
|Third||Delaware, New Jersey, Pennsylvania, Virgin Islands|
|Fourth||Maryland, North Carolina, South Carolina, Virginia, West Virginia|
|Fifth||Canal Zone, Louisiana, Mississippi, Texas|
|Sixth||Kentucky, Michigan, Ohio, Tennessee|
|Seventh||Illinois, Indiana, Wisconsin|
|Eighth||Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota|
|Ninth||Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington|
|Tenth||Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming|
|Eleventh||Alabama, Florida, Georgia|
|D.C.||District of Columbia Circuit|
United States District Courts
Each state has one or more district courts, with the following jurisdiction:
- Exclusive jurisdiction over admiralty; bankruptcy; patent or copyright law; cases involving a fine, penalty or forfeiture under federal law; proceedings against consuls of foreign states; seizures on land or water. It includes jurisdiction over all offenses against the laws of the United States; cases where the US, a national bank, or I.R.S. is a party, and may include civil rights cases, election disputes, and other jurisdiction spelled out by federal legislation.
- Concurrent jurisdiction with states courts:
- If "federal question" where controversy arises under the Constitution, laws, or treaties of the United States and more than $75,000 is involved.
- If "complete diversity" of the dispute where the dispute involves citizens of different states, or between a citizen of a state and an alien.
- Removal jurisdiction: If suit is brought in state court, the defendant may remove the case to federal district court if it involves:
- a "federal question"
- an action against US officials
- cases in which a state court is not properly enforcing a law providing for equal civil rights
- cases against members of the armed forces.
Special Courts of the United States
These include Court of Federal Claims, Court of Appeals for the Federal Circuit, Tax Court, Court of International Trade, Court of Appeals for the Armed Forces, etc.
2. State Court Systems
Courts of Ultimate Review
All states, by constitution or legislation, provide for one court of ultimate review. In most of the states the highest appellate court is called the Supreme Court, but it may also be called the Court of Appeals or Supreme Court of Appeals. The courts of last resort hear appeals from lower state trial courts or courts of intermediate appeal. They have ultimate jurisdiction over controversies involving the interpretation of the state constitution and state statutes.
Intermediate Appellate Courts
Most states have intermediate appellate courts. They may be called appellate courts or superior courts. Generally, they exercise appellate jurisdiction but may have special original jurisdiction. There is permissive review by the highest state court.
Trial courts have general jurisdiction to handle civil, criminal, equity, and probate cases. States may have separate civil and criminal and family divisions, and may have separate probate or surrogate courts.
Courts of Limited or Special Jurisdiction
Numerous special courts exist to handle petty criminal and petty civil matters. These include small claims courts, traffic courts, special family or juvenile courts. There may be overlapping jurisdiction between these courts and trial courts.
Concurrent Jurisdiction and Stare Decisis
Federal and state courts may have overlapping or concurrent jurisdiction in some matters. Generally, federal courts do not deal with cases arising under the laws of individual states and vice-versa; however, there are instances in which each may hear cases on matters generally falling within the purview of the other.
The normal rules of stare decisis and judicial precedent regarding binding and persuasive authorities apply within each of the federal and state court systems. The rules, however, become complex when a state court is enforcing federal laws, or when a federal court is applying state law.
These rules are too complex to summarize here. However, for the purposes of legal research it is important to understand that there may be relevant cases decided both in the state court system and in the federal court system. For example, even though family law may be primarily a question of state law, and thus one would search for cases in the state court systems, there may be relevant family law cases in the federal courts.
RESEARCH TOOLS FOR AMERICAN LEGAL MATERIALS
Below are highlighted several unique and very useful reference publications for American law. Refer to the chapter on Secondary Sources for information on legal journal indexes, and searching for books on the web catalogue .
1. American Law Reports (ALRs)
The American Law Reports (A.L.R.), in addition to reporting selective state and federal cases, contain detailed "annotations" to each case. Each annotation is similar to a memorandum of law and exhaustively reviews the leading cases relevant to the specific fact situation raised in the case.
For the Canadian lawyer researching specific US law, the American Law Reports are the best starting point. If an annotation is found dealing with your specific problem, the majority of your US research will have been completed. For the more recent series, each annotation can be updated for later cases by checking the pocket parts in the back of that law report volume.
Typical annotations include: "What constitutes private passenger automobile in insurance policy provisions defining risks covered or expected" ; or "Products Liability: Ladders". In each annotation, all US case law specifically on point is analyzed.
Cases arising out of the state courts are annotated in ALR which exists in a number of different series. Federal cases were contained in ALR up till 1969, and are now found in ALR Federal. US Supreme Court cases are annotated in the Lawyers Edition (L.Ed.) of the Supreme Court Reports.
To find out if there is a specific annotation on point use the print Index to Annotations (covering ALR 2d, ALR 3d, ALR 4th, ALR 5th, ALR Federal and L.Ed 2d). It is important to check the pocket parts, both in the Index and in the law report containing the annotation that you are relying on. The pocket parts refer to more recent material.
The ALRs may be searched on Westlaw Canada.
2.Legal Encyclopedias and Digests
Generally, other search methods are more effective to obtain a quick overview of US law. The encyclopedias tend to be general, while the West Key Number Digest approach is quite specific.
There are two leading American legal encyclopedias, but they are often too general to be very satisfactory to a Canadian lawyer researching the American application of a specific problem. They are useful, however, for a general and elementary statement of law, for the citations to leading cases, and for the cross-references to other research tools. They are also necessary to consult if you cannot find material on point using other sources.
The two current general legal encyclopedias are put out by competing law book publishers and each is geared to that specific publishers' system of legal research. Both have good indexes; updating is by pocket parts at the back of each volume.
Corpus Juris Secundum (C.J.S.)
Published by West, and linked to West's Key Number System used in the National Reporter System and the American Digest System, this encyclopedia summarizes general rules of law in "Black Letter" headings and are then expanded upon in the text. It also sets out the limitations and exceptions to the rules where appropriate. The legal analysis is accompanied by case citations, and the encyclopedia makes an effort to cite as many states and federal cases as possible, thus providing an overview of the law in a local jurisdiction as well as across the country. The encyclopedia contains hundreds of separate titles on a broad range of legal topics. Documents available for each topic may include a summary, topic contents, individual sections of text, and a table of parallel references. The Law Library continues to subscribe to the print edition of Corpus Juris Secundum. It is also available online on Westlaw Canada.
American Jurisprudence 2d (Am. Jur. 2d)
This encyclopedia tends to be a statement of modern authorities. The footnotes refer only to selected reported decisions. The library continues to subscribe to it in print. This source is also available on Westlaw Canada and LexisNexis Quicklaw.
3. American Case Law
Like Canadian case law, American case law is reported in a variety of formats, including print, online through databases such as Westlaw Canada, LexisNexis Quicklaw, and freely on the internet. Comprehensive access is found only via Westlaw Canada and LexisNexis Quicklaw. For decisions on the internet, a very good source is the Cornell Legal Information Institute's Judicial Opinions site at http://www.law.cornell.edu/opinions.html It provides links to federal and state sites with full text access to decisions.
American Digest System (West Key Number Searching)
The American Digest System is an ambitious system which attempts to digest every reported case in the National Reporter System according to a very detailed title classification scheme (the Key Number System). These are the same Key Number Digests appearing in headnotes in the National Reporter System. Each case is assigned a separate Digest Topic Number (broad topic) and Digest Key Number (specific issue), e.g. 205k260 -- 205 is digest topic Husband and Wife -- k260 is the key number for Damages for injuries to husband and wife. In theory, all cases dealing with this issue can be retrieved by searching this West Key Number.
The major problem with the digest is inconsistency in assigning digest numbers. The digests are at times too brief and tell you little about the case. They can be misleading and out-of-context when compared with the original reasons for judgment, and there is also a problem of numbers--there are often too many digests to go through. As a result, key number searching is not normally an effective method of doing US legal research from the point of view of a Canadian researcher who requires a broad overview of a particular area.
To a large extent, effective use of Westlaw Canada supersedes the usefulness of the American Digest System. The Key Number Digests are included in the "headnote" for each case, and can be searched separately or in combination with the full text of decisions.
The print version of the digests is the series of Decennial Digests covering 10 year periods from 1897 (the Century Digest covers pre-1897 cases). West's General Digest covers more recent cases.
4. Federal & State Decisions
|Format||Westlaw Canada||LexisNexis Quicklaw|
All Federal & State Cases (ALLCASES)
|Source: Federal & State Cases, Combined|
|Annotations||American Law Reports (ALR)
American Law Reports Federal (ALR Fed)
|Decisions||Westlaw Canada||LexisNexis Quicklaw|
|All Federal Cases||All Federal Cases (ALLFEDS)||Federal Court Cases, Combined|
|US Supreme Court||US Reports (US)
Supreme Court Reporter (S.Ct.)
Unites States Supreme Court, Lawyers' Edition (L.Ed.)
|SCT||U.S. Supreme Court Cases, Lawyers' Edition|
|Federal Court of Appeals
|Federal Reporter (F. & F.2d)||CTA||Federal Circuit - US Court of Appeals Cases|
|Federal District Court||Federal Supplement (F. Supp.)
|DCT||US District Court Cases, Combined|
Generally, only the highest state court decisions are always reported. Intermediate appellate court decisions may be reported in some reporters (selectively in N.W., S.E., S.W., So., and fully in Cal. Rptr., And N.Y.S.). Trial decisions are not generally reported except in some official state reports.
Only some states have official state reports. However, the West National Reporter System: Regional Reporters are the most widely used law report series.
|Decisions||Westlaw Canada||LexisNexis Quicklaw|
|All State Cases||All State Cases (ALLSTATES)||State Court Cases, Combined|
|Conn., Del., Maine, Md., N.H., N.J., Penn., R.I., Vt., DC Municipal Court of Appeals||Atlantic Reporter (A. & A.2d)
2d -v.652 1995
_-CS (where _ is state abbreviation) ie AL-CS (Alabama cases)
|Ill., Ind., Mass., N.Y., Ohio||North Eastern Reporter (N.E. & NE 2d)
2d -v. 645 1995
|Iowa, Mich., Minn., Neb., N.Dak., S.Dak., Wis.||North Western Reporter (NW& N.W.2d)
2d -v.526 1995
|Alaska, Ariz., Cal., Colo., Hawaii, Idaho, Kan., Mont., Nev., N.M., Okla., Ore., Utah, Wash., Wyo.||Pacific Reporter (P. & P.2d)
2d -v.888 1995
|Ga., N.C., S.C., Va., W.Va.||South Eastern Reporter (SE& S.E.2d)
2d -v.452 1995
|Ark., Ky., Mo., Indian Terr., Tenn., Tex.||South Western Reporter (SW& S.W.2d)
2d -v.890 1995
|Ala., Fla., La., Miss.||Southern Reporter (So. & So.2d)
2d -v.648 1995
|New York||New York Supplement (N.Y.S.)
2d -v.610 1995
|California||California Reporter (Cal.Rptr.)
2d -v.37 1995
5. CASE CITATORS: SHEPARD'S and KEYCITE
The traditional way to check for cases that have considered an earlier case was to use Shepard's Citations available in print format. You can now "Shepardize" (note up) a U.S. case electronically from the homepage in LexisNexis Quicklaw.
Shepard's uses a sophisticated system of editorial references to indicate how the subsequent case treated the original case. Despite this, a Shepard's search can often retrieve hundreds of citations to subsequent cases.
Westlaw Canada provides an equivalent to shepardizing a case. It allows the user to limit the results to the kind of treatment received, a specific date range, and even to type of document (case or non-case material).
If you already know the citation of the case, you can keycite it right from the "Westlaw" tab. Or:
- Run your search in the American databases in Westlaw Canada
- Click on the Keycite symbol at the top of the screen, beside the case name or click on "Citing References"
- Once the citations appear, you can click on "Limit Keycite Display" to a number of options provided on the screen which allow you to limit your results
- You will also see related entries in the ALRs, Corpus Juris, and other sources
For more detailed information, please refer to the help pages provided on Westlaw Canada.
US FEDERAL AND STATE LEGISLATION
In general, federal and state statutes, regulations, and bills are best searched through Westlaw Canada or LexisNexis Quicklaw. The Internet may also be used for current legislative materials. The Cornell Law School Legal Information Institute is a good site.
|LexisNexis Quicklaw||Westlaw Canada|
|US Code/US Code Annotated||USC or USCA||USCS (&various others)||USC or USCA|
|US Public Laws||US Statutes at Large
US Code Congressional and Administrative News
|USCS - Public Laws||US-PL|
|Code of Federal Regulations||CFR (& various others)||CFR|
|Federal Register||FR - Federal Register||FR|
|All State Statutes||State Codes, Combined(& individual state databases)||
STAT-ALL (unannotated) or
|All State Regulations||Various individual state and topical databases|
United States Code
The United States Code (U.S.C.) is the current consolidation of federal statutes. All federal statutes in force are broken down into 50 Titles, with each Title covering a broad subject category (e.g. Title 29 contains all federal legislation dealing with Labor Law).
West Publishing produces the United States Code Annotated (U.S.C.A.) which contains in addition to the text of codified statute law, legislative history notes and annotations to case law. Good index volumes exist. Pocket parts at the back of each volume of USCA contain the recent amendments. Periodically each volume is replaced with a more up-to-date version. Paper bound books at the end of each set contain the most recent legislation.
United States Statutes At Large
These are the sessional volumes. They are not often cited, as each Public Law as passed is broken up and assigned to the appropriate subject classification in the US Code.
US Code Congressional and Administrative News
Contains legislative histories of each public law, and the text of statutes passed during the current year: useful for finding statutes that have not yet been published in the Statutes at Large or the U.S.C.A.
US federal regulations are first published in the Federal Register, a daily publication. As with the US Code, federal regulations are also codified by subject in the Code of Federal Regulations (C.F.R.). The C.F.R. Is also broken down into 50 Titles corresponding to the US Code.
The C.F.R. Is published in paper pamphlets which are superseded annually. To update for amendments or new regulations resort must be had to the Federal Register. Special tables assist in transferring from the C.F.R. to the Federal Register.
Most state legislation is published similar to the federal model (i.e. sessional volumes of statutes and a code of statutes in force arranged by subjects).
Both Westlaw Canada and LexisNexis Quicklaw have all state codes, both in unannotated and annotated form if available. As well, both systems provide access to the "slip laws"--recent legislation not yet published in the state code.
Restatements and Uniform Laws
Canadian jurisprudence occasionally refers to the American Law Institute Restatements of the Law or to the Uniform State Laws.
The Restatements present an orderly restatement of US common law and of judicial interpretation of statutes. The restatements are not codes, but rules of law which would be applied by courts. The Institute looks at precedent, but may also espouse minority rules.
Restatements exist for a number of areas including agency, conflicts, contracts, foreign relations, judgments, property, restitution, securities, torts, and trusts. There is also a code of criminal procedure and a model code of evidence. Appendix volumes, as well as a unit of Shepard's Citations, list court decisions which have considered the restatements.
The National Conference of Commissioners of Uniform State laws recommends uniform laws to be adopted by individual states. The most noted example is the Uniform Commercial Code available from many publishers. Uniform Laws Annotated is a series reproducing all uniform laws and indicates which states have adopted them
Use QCAT to search for the ALI Restatements and the Uniform Laws Annotated in the Law Library. The Restatements may be searched on Westlaw Canada (REST) and LexisNexis Quicklaw. The Uniform Laws Annotated may be searched on Westlaw Canada (ULA).
Last Updated: 01 November 2011