Introduction

Legal questions can cause even very experienced librarians to quake in their boots. The keys to helping patrons with legal questions are: understanding the legal system, laws, and courts; knowing where to find legal information; and knowing how to avoid giving legal advice. This chapter covers some basic information about the U.S. legal system, the  federal judicial system, and state courts.

When a patron wants to know what “the law” is, he or she will quickly find that the answer is not so simple. This is because there are four primary sources of federal law:

• The U.S. Constitution (constitutional law)
• Federal statutes (statutory law)
• The Judiciary (case law)
• Agency regulations and decisions (administrative law)

States have parallel systems for matters delegated to states, and counties or municipalities may also have city charters, statutes, regulations, and a judiciary. For any given area of law, federal statutes, state statutes, regulations, and/or court decisions may be in play. This is why it is sometimes preferable to refer a patron to a secondary source, because they are written in layperson’s language and are much easier to understand and digest than the raw statutes, regulations, and court decisions.

To give an example, imagine that a patron is upset about having to get a new ID card so that she can travel by air. The REAL ID Act, Public Law 109-13, was passed by Congress in 2005 to authorize the Department of Homeland Security to establish national standards for the issuance of IDs by states to prevent individuals from fraudulently obtaining identification used to fly or enter federal facilities. Prior to its enactment, there was no national standard. Following passage of the law, new regulations were created that established standards for meeting the minimum requirements of the law. Each state was then responsible for revising its ID procedures to comply with the federal law. While most states are compliant, a few have requested extensions. Some states initially refused to comply, arguing that the law was onerous and a violation of privacy. A few states even passed laws that prohibited the state from complying with the federal law. Lawsuits have been filed to contest various provisions of either the REAL ID Act or states’ implementation of the law. This type of confusing blend of state and federal law and court cases can quickly turn a simple question into a complex search.

Reference Service

As with any reference transaction, it is important to conduct a thorough reference interview. This may not be possible when a question is submitted through email, although you can approximate a reference interview by creating a form that the patron can fill out. Even if you have the opportunity to ask the patron questions in real time, they sometimes give confusing or incomplete answers, and they may be unfamiliar with legal terminology, leading them to ask for the wrong thing. For example, many people confuse copyrights with patents or eminent domain with adverse possession.

Part of the reference interview is to determine the jurisdiction. Is it a federal matter, state matter, or both? This is where it helps to know which types of cases are heard in which courts. You will also want to ascertain whether the person is seeking a court decision, case records, or some other type of material. Caution: using a search engine to look up a court case may not produce all of the relevant material, which is why it is preferable to use a specialized online database for legal research. Narrowing a patron’s inquiry is sometimes necessary, as in the case of a patron wanting all of the court cases related to marijuana possession.

It is essential to avoid giving legal advice while providing requested information. Even law librarians, who usually have law degrees, refrain from giving advice, in part because the librarian may not have been admitted to the state bar, or the question may fall outside the librarian’s area of expertise. Chapter 4 of Locating the Law: a Handbook for Non-Law Librarians provides an excellent framework for understanding how to avoid this potential pitfall.^[1]

The challenge is to rein in your own natural inclination to be helpful. It can be tempting to provide an answer to a patron who becomes irate when a librarian refuses to interpret legal information or to advise them on a course of action. Patrons may not understand that advising them about which form to use or even pointing them to a specific document could constitute legal advice.

Secondary Sources

Commercial websites like Findlaw or Justia can be helpful for some questions, but they may not be specific enough for many inquiries. Non-law librarians may wish to refer patrons to secondary sources that cover the area of law in question. For instance, most states have legal resources regarding landlord-tenant law. Examples include Handbook for the Hawaii Residential Landlord-Tenant Code by the State of Hawaiʻi Department of Commerce and Consumer Affairs and the Landlord and Tenant Handbook by Legal Aid of Nebraska.

Legal aid societies exist in every state. They provide assistance to low-income individuals regarding certain legal matters such as family law, landlord-tenant disputes, housing, and immigration. Many societies also maintain self-help resources on their websites or through sites like LawHelp.org.

Law Reviews

An excellent source for overviews or summaries of legal issues is law review articles. These appear in law review journals, which are published by law schools or legal publishers, and they often describe significant legislation and court cases in a particular area of the law. Law review articles take the form of case studies, reviews of the history of legal issues, comments, and notes. A patron interested in the legal issues that arose in the case Palila v. Hawaiʻi Department of Land and Natural Resources could consult an article in Journal of Land Use and Environmental Law.^[2] Google Scholar provides access to many law review articles, and they are also available through the major legal databases.  

Encyclopedias, Dictionaries, and Other Legal Reference Works

Like other types of encyclopedias, legal encyclopedias can be useful to provide an overview of an area of law and explain concepts and terminology. For example, if a user wanted to understand the difference between eminent domain and adverse possession, she could consult American Jurisprudence or Corpus Juris Secondum, expensive legal encyclopedias usually found in law and academic libraries. Lacking access to these resources, she could consult Wex, a collaborative legal dictionary and encyclopedia hosted by Cornell University’s Legal Information Institute. Through Wex, she would learn that eminent domain refers to the government’s power to take private property for a public good, such as purchasing houses for a freeway right-of-way. Adverse possession refers to a legal doctrine whereby a person who possesses a piece of property owned by another party may gain title to it if certain conditions are met.

Most libraries have access to the most popular legal dictionaries like Black’s Law Dictionary^[3] or Ballentine’s. HeinOnline’s Spinelli’s Law Library Reference Shelf includes dictionaries, legal research guides, and bibliographies. In addition, there are specialized legal references for particular subject areas like environmental law or real estate law. If you work in an underresourced library that doesn’t have access to legal reference works, you can call your local law library for help. Law librarians are usually very eager to help their fellow librarians.

Many libraries maintain collections of books to help patrons who are representing themselves in court (termed pro se, Latin for “for oneself”). Nolo Press is a publisher that specializes in self-help legal works and information covering federal and state laws for pro se patrons. A patron asking about child support, for instance, might find answers in Nolo’s Essential Guide to Child Custody & Support.^[4] Nolo also posts articles about legal topics on its website.

Local authors may prepare self-help books for specific states. Examples for Hawaiʻi include Who Gets It When You Go^[5] and Divorce with Decency: the Complete How-to Handbook and Survivor’s Guide to the Legal, Emotional, Economic, and Social Issues.^[6] Be aware that reference books may become out of date or may lack coverage of newer legal issues.

Overview of Federal Courts

Figure 1. Overview of the Federal Court System.^[7]

Federal District Courts

Federal district courts are the trial courts of the federal judiciary. There are 94 federal district courts covering the 50 states and U.S. territories. 677 federal judges, who are all appointed by the president to lifetime terms, preside in the federal judiciary. Surprisingly, there is no requirement that a federal judge have a law degree, although almost all do. Federal judges can be removed from office through a process conducted by Congress called impeachment.

U.S. District Courts hear both criminal and civil disputes involving public and private laws. District courts also hear appeals of administrative law decisions. Federal district courts are often in the news because they hear cases involving the constitutionality of state or federal law, like the lawsuit that was filed in 2017 by several state attorneys general against the Trump administration contesting the constitutionality of the president’s executive order barring immigration from certain countries^[8].

Patrons are sometimes confused about whether court cases fall under the jurisdiction of federal or state courts. This list gives a brief overview of the types of cases that are heard in federal courts.^[9]

• Crimes under statutes enacted by Congress; i.e., federal crimes
• Cases involving violations of federal laws or regulations
• Matters involving interstate and international commerce, including airline and railroad regulation
• Cases involving securities and commodities regulation, including takeovers of publicly held corporations
• Admiralty cases (e.g., interactions between ships, marine salvage, marine pollution, carriage of passengers)
• International trade law matters
• Patent, copyright, and other intellectual property issues
• Cases involving rights under treaties, foreign states, and foreign nationals
• State law disputes when a “diversity of citizenship” exists such as personal injury or product liability cases that involve different states’ laws.
• Bankruptcy matters
• Disputes between states, such as  water rights or boundary disputes
• Habeas corpus actions (used by federal courts to determine whether states are legally detaining a person)
• Traffic violations and other misdemeanors occurring on certain federal property

In addition to the district courts in the fifty states, there are three territorial courts. In Hawaiʻi, there are four district court judges, two senior judges, and three magistrate judges. Magistrate judges hear pretrial motions, habeas corpus proceedings, evidentiary hearings, and issue search and arrest warrants.

Looking at the website of the U.S. district court for Hawaiʻi, we see that each judge has his or her own requirements that specify how certain matters such as juries are handled. Other information that can be found on the court’s website includes forms and information about how to obtain transcripts. Redaction of transcripts is up to the parties involved, not the court, so there are also instructions for submitting redactions. The district court in Hawaiʻi started providing access to court documents through Public Access to Court Electronic Records (PACER) in 2008 (PACER will be discussed in greater detail below).

Other Federal Courts

Bankruptcy Courts

Bankruptcy courts, while part of the federal judiciary, are separate from district courts. Bankruptcy judges serve 14-year terms and are not appointed by the president but rather by the court of appeals in each circuit. Bankruptcy filings are often seen as an indicator of economic health, so the media typically report the number of bankruptcy filings in a state or in the U.S., divided into types of cases:

Table 1. Types of Bankruptcy Cases^[10]

Foreign Intelligence Surveillance Court

The Foreign Intelligence Surveillance Court is an ad hoc collection of judges appointed by the Chief Justice of the Supreme Court for one-week periods. Its caseload concerns approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes. Most of its orders are secret, and even those that are publicly released may be redacted. Even the court’s statistics do not reflect the classified orders it issues, so there is no way for us to know how many orders the court actually issued or why they were issued.

Court of International Trade

The Court of International Trade  (CIT) is mostly concerned with deciding cases involving decisions issued by the Commerce Department, such as classification of imports under the Harmonized Tariff Schedule of the United States or violation of anti-dumping regulations. Let’s look at an example of a slip opinion (an opinion that has not yet  been compiled into the court’s official reports). In Quaker Pet Grp., LLC v. United States, Quaker Pet argued that fabric pet carriers were improperly classified as pet carriers when they should have been classified as textile articles. The CIT found in Quaker’s favor and ordered a refund of the excess duties.

U.S. Court of Federal Claims

The U.S. Court of Federal Claims is known as the “people’s court.” It hears cases involving federal contracts, claims for compensation due to taking of private property, bid protests in procurement actions conducted by federal agencies, monetary claims against the U.S. including refund of income taxes, military and civilian pay and benefits, certain suits by Indian tribes, and, interestingly, vaccine claims, which are heard by the Court of Claims rather than being heard in federal district court. In 1987, the court’s scope was expanded to appoint special masters to hear claims filed under the National Childhood Vaccine Injury Act, which established a process to handle claims of injury caused by certain vaccines.

U.S. Tax Court

The U. S. Tax Court, which hears appeals of cases decided by the Internal Revenue Service, issues its decisions in Tax Court Reports, which is published by GPO. Tax court reports, decisions, and opinions can also be found in the commercial database Thomson Reuters Checkpoint. A version of Tax Court Reports is also published by Commerce Clearing House. These commercial reporters are designed for tax practitioners to make it easier for them to understand how the Tax Court interprets the federal Tax Code.

Appellate Courts

There are three different types of federal appellate courts. You’re probably most familiar with the first type, the U.S. Courts of Appeals that hear appeals from the U.S. district courts. A total of 49,816 cases were filed in the U.S. Courts of Appeals in 2017, and at the end of that year, 38,876 cases were pending.

The U.S. Court of Appeals has 12 circuits. Hawaiʻi is part of the 9th Circuit, which also includes Alaska, American Samoa, Arizona, California, the Commonwealth of the Northern Mariana Islands, Guam, Idaho, Montana, Nevada, and Oregon. Each appeals court hears appeals of cases heard in the U.S. district courts in its circuit and appeals of federal administrative decisions made by executive branch agencies (the bulk of which are immigration cases).

Cases are usually heard by a panel of three judges, a measure necessitated by the large caseloads of the appellate courts. In rare instances, cases may be heard by the full panel of nine judges (known as en banc). Newly filed transcripts must be obtained from the court and are not available in PACER (discussed below), the federal court’s electronic records system, until 90 days after the transcript file date.

Other federal appellate courts include the Court of Appeals for Veterans Claims, which hears appeals of decisions by the Board of Veterans’ Appeals about veterans benefits. The U.S. Court of Appeals for the Armed Forces hears appeals of criminal cases from military courts: the Air Force Court of Criminal Appeals, Army Court of Criminal Appeals, Coast Guard Court of Criminal Appeals, and the Navy-Marine Corps Court of Criminal Appeals.

U.S. Supreme Court

Although the Supreme Court receives a lot of publicity due to its landmark decisions and battles over the appointment and confirmation of its justices, it actually hears very few cases. In 2018, 7,622 cases were filed in the Supreme Court, of which a mere 73 were argued before the court.^[11] The Supreme Court has nine justices, who are appointed by the President for lifetime terms and approved by the Senate. The Supreme Court’s decisions are published in print in United States Reports by GPO. Online access to all of its decisions is freely available through the Supreme Court website from 1987-present. There are many other legal websites providing free access to the more recent Supreme Court decisions and to landmark decisions. The full run of decisions is available in the electronic products WestLaw, LexisNexis, HeinOnline, LLMC Digital, and Nexis Uni.

If you read a Supreme Court decision such as the one rendered in Rice v. Cayetano (528 U.S. 495 (2000), a case that concerned a Hawaiʻi voter who sued the State of Hawaiʻi because he, as a non-Native Hawaiian, was not permitted to vote in elections for Office of Hawaiian Affairs trustees), you will see that they usually contain an overview of the issue to be decided and the legal arguments presented by each side. The decision, written by one of the justices, then outlines the reasoning of the court in rendering its decision. A dissent, if there is one, may follow. The decision and legal issues may be challenging for a layperson to understand. For this reason, it’s often preferable to refer a patron to secondary sources such as news or journal articles that explain court decisions in layperson’s language.

An astonishing amount of analysis is performed on the Supreme Court. Statistics show the extent to which the court rules unanimously, in a 5-4 split, or in other configurations; how many opinions each justice writes; where the cases originate; and so forth.^[12]

Court Decisions

Courts issue their decisions in the form of opinions. Usually, only appellate court opinions are published, in collections called reporters. Each court has its own reporter publication (see Table 2 for federal examples). Decisions in trial courts are not considered precedent-setting, so they are not usually published and are not available in published compilations of court decisions. Not all court opinions are published, though, nor do all courts issue opinions. A common reason for non-publication is that a decision may be non-precedent-setting. Unpublished decisions must be obtained from the court. Many court decisions are privately published by commercial publishers like Thomson Reuters (parent company of legal publisher West), but you can go to a public law library such as those in the Hawaiʻi State Law Library System to consult them. The tradition of privately publishing legal works such as laws and court decisions dates back to the 18th century, before there was such a thing as the GPO.

Recent court decisions and “landmark” decisions are easy to find on the internet using legal sites like Findlaw or Justia. Nexis Uni is a subscription resource for current and historical federal and state court decisions and is commonly available in academic or large public libraries. Google Scholar also contains current and historical state and federal court decisions. The United States Courts Opinions (USCOURTS) collection on GPO’s govinfo.gov hosts decisions from U.S. appellate, district, and bankruptcy courts. In general, coverage is available back to April 2004, although some collections are incomplete, and a few extend beyond 2004.  

While it is relatively straightforward to find a specific opinion, determining whether that decision still stands or has been overturned or modified by subsequent decisions is the core of legal research. Citators, like those developed by legal publishers LexisNexis and Westlaw, are designed to make it easy to research the subsequent history of an opinion. This is why it is preferable to refer a patron to a law library for help with advanced legal research, since most libraries do not subscribe to these specialized legal databases. 

Table 2. Federal Courts, Reporters, and Citation Examples

Court Records

Library patrons seek court records for a variety of reasons. Often, a relative, ancestor, or acquaintance was a party to a criminal or civil case, and the patron wants to learn the history of the case. Patrons may be interested in following a current criminal or civil case in the news or one that affects them personally. Authors or academic researchers may be interested in historical cases to learn what the arguments were and perhaps find individuals’ testimony.

What kinds of documents would a researcher find in a court case? The docket is a chronological list of the actions taken in a case and the documents that have been filed. Having the docket number is very helpful in tracking down court records. In a civil case, the complaint and answer state the basic positions of the plaintiff and defendant. In criminal cases, the indictment states the offenses allegedly committed by the defendant. If a case is appealed, the briefs of the various parties state their positions on the appeal. Transcripts of the court proceedings may be available, but they are not always available in their entirety.

Even though court records are public records, there are some barriers to accessing them. First, some court records are sealed. For example, juvenile court records are not publicly available, nor are records related to national security. Court records may also be redacted to preserve the privacy of individuals or to protect the identities of confidential witnesses. Second, many court records cannot be found online, so researchers must go in person to the court or hire a researcher to obtain copies of the records. Third, court records are not always available for free. Courts charge for copies, and in many courts, even downloading online documents incurs a fee. Finally, court records may have been destroyed in natural disasters or they may simply be missing for unknown reasons.

Current

The U.S. Supreme Court provides access to transcripts of oral arguments going back to 2010 for cases on its website. Transcripts and recordings of oral arguments for current and historical cases may also be found on the Oyez website. PACER (Public Access to Court Electronic Records) is the repository for electronic court documents in the federal district, bankruptcy, and appellate courts. The availability of records varies by court. Pre-2003 bankruptcy cases and criminal cases prior to November 1, 2004 are not available. While the FDLP maintains free access to government information, the documents in PACER are not covered by the law that governs executive and legislative branch information distributed through the FDLP. Obtaining documents through PACER is not free: “Access to case information costs $0.10 per page. The cost to access a single document is capped at $3.00, the equivalent of 30 pages. The cap does not apply to name searches, reports that are not case-specific, and transcripts of federal court proceedings. By Judicial Conference policy, if your usage does not exceed $15 in a quarter, fees are waived.”^[13] Researchers conducting scholarly research can request exemptions from fees. For access to court documents not available in PACER, researchers must go in person to the court.

In terms of commercial products, Gale’s database Making of Modern Law: U.S. Supreme Court Records and Briefs, 1832-1978 provides access to digital versions of briefs. ProQuest’s Supreme Court Insight provides access to all Supreme Court documents from 1975 forward.

Historical

Sometimes, it is helpful to look for additional background information about a court case to guide research. News articles can be helpful in pinpointing access points like the names of the parties, the date, and the court in which the case was heard. Although landmark cases like Roe v. Wade may be referred to by their legal citations, news sources often do not publish the citation. When it is not possible to locate a court record, or the patron is unable to travel to the court to obtain records that aren’t available online, news articles may be the best source of information.

In some states, selected law libraries receive records and briefs from appellate cases. These are helpful when cases are heard in an appeals court, but cases that never proceeded beyond the trial court are not represented in these records. The reference work Union List of Appellate Court Records and Briefs^[14], although dated, provides a listing of libraries that hold collections of records and briefs. The Supreme Court Law Library in Honolulu is the only law library with historical holdings of records and briefs from the appellate courts in Hawaiʻi.

Citations

There are many different types of court cases, and each has its own citation format. Patrons usually need one of two types of assistance with citations: they either need guidance on how to construct a citation for a court case or legal publication, or they need help in deciphering a citation. The most well-known legal citation guide is The Bluebook: a Uniform System of Citation.^[15] It is prescriptive, meaning that it instructs the user on how to cite different types of cases and other legal resources. The most authoritative guide is Prince’s Dictionary of Legal Citations, the go-to source for interpreting unfamiliar legal citations.^[16] Less detailed, the freely-accessible Introduction to Basic Legal Citation shows examples of citations for federal and state laws and court cases. Legal databases usually provide citation generators for legal materials in a variety of formats.

Judicial Papers

Judicial papers can be important sources of information about a particular judge’s decisionmaking and even the evolution of their thinking on an issue. Judicial papers, like congressional papers, are not legally required to be retained or deposited anywhere. Nevertheless, collections of judicial papers can be found in many libraries, archives, and historical societies.

Wikipedia or the Federal Judicial Center’s biographical directory can be starting points when you are looking for judicial papers. Note that like congressional papers, judicial papers may be embargoed or restricted for a defined period. The Library of Congress found itself in hot water after it released the papers of Supreme Court Justice Thurgood Marshall following his death in 1993. Sitting members of the court and others argued that secrecy is critically important to the court, and by releasing the papers immediately following Marshall’s death, LC had laid open the inner workings of the court, thus potentially making future judicial donors less likely to deposit their papers with LC.^[17]

Tribal Courts

About 175 tribal courts have been established by Indian and Alaska Native tribes in the U.S. In general, states do not have jurisdiction over tribes, so tribal courts provide a parallel judicial structure to handle cases on Indian reservations and in Native Alaskan communities. However, there are limits to the types of cases that can be tried in tribal courts. A look at the 2012 Alaska Tribal Court Directory^[18] reveals that the types of cases handled by the tribal courts varies a great deal. Most importantly, tribal courts cannot prosecute non-Indians for crimes committed on tribal land, with some exceptions. In addition to tribal courts, the Bureau of Indian Affairs operates Courts of Indian Offenses on some reservations. Tribal courts operate under the constitution, code of justice, and/or customary law of each tribe, whereas the Courts of Indian Offenses operate under federal jurisdiction. A further dimension of tribal justice exists in states where tribes do not have their own court system and the state court system handles most criminal and civil cases, although there may be tribal courts that handle narrowly defined categories of disputes.^[19]

In contrast to U.S. federal and state courts, the availability of tribal court opinions varies. Some opinions are published in the Indian Law Reporter or WestlawNext, but many tribes either publish opinions on a website or do not publish them at all. Furthermore, some tribal courts do not share opinions outside of the tribe.^[20]

Interestingly, the U.S. Supreme Court recently rendered a decision in McGirt v. Oklahoma that much of the eastern part of Oklahoma is “Indian country.” Therefore, major crimes committed by American Indians on the reservation established in a treaty with the Creek Indians are under federal, not state, jurisdiction. The State of Oklahoma unsuccessfully argued that the reservation had been dissolved by subsequent actions. The ruling potentially has far-reaching implications for the prosecution of crimes committed on other Indian reservations.

Librarian’s Library 

Administrative Office of the U.S. Courts. (2014). Understanding the federal courts. https://www.uscourts.gov/sites/default/files/understanding-federal-courts.pdf 

Everything you ever wanted to know about the federal judiciary, this document explains the types of courts, their jurisdiction, judges, the judicial process, and more.

Tucker, V. M. & Lampson, M. (2018). Finding the answers to legal questions (2nd ed.). Chicago: ALA/Neal-Schuman.

This volume, arranged by area of law, covers the handling of common legal questions and includes references to a number of resources for state laws, court cases, and administrative law as well as self-help books and sites.

Southern California Association of Law Libraries (2019). Locating the law: A handbook for non-law librarians. 6th ed. https://scallnet.org/publications/

This excellent legal research guide for non-law librarians covers federal and state law with an emphasis on California.