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Research Strategies: Every research project starts with the same analysis or strategies:
- Federal or State Law: Will my question be answered by FEDERAL or STATE law?
- How do you know?
- What role does each play?
- The Federal Government can only operate within its enumerated powers, which come from Article I, Section 8 of the Constitution. https://www.law.cornell.edu/constitution/articlei#section8
- State Government has all powers not given to the Federal Government. This is stated in the Tenth Amendment to the Constitution. https://www.law.cornell.edu/constitution/tenth_amendment
- What does experience tell you?
- Think about the classes you’ve taken for your paralegal degree. What law did you learn in each of those classes? Did you cover federal or state law in Tort Law? Did you cover federal or state law in Criminal Law?
- Consider personal experience. If you’ve gotten a speeding ticket – did that come from federal or state government? When you file taxes, who do you file those with – federal or state?
- It may become part of your research.
- If you cannot determine whether your answer will be found in federal or state law from the understanding the role each plays or from experience, it becomes part of your research, which leads us to the next question:
- Primary or Secondary Source? Do you want to start your research using a PRIMARY or SECONDARY source?
- A primary source is a pronouncement of the law made by someone with the authority to define the law. Primary sources are the law itself, and are binding within their own jurisdiction.
- Secondary sources are any source that explains, reviews, criticizes, etc. the law. Secondary sources tend to be easier to use and easier to understand. The value is that you have both a discussion of the law along with a citation to the law. For example, if you don’t know whether your question is one of federal or state law, starting with a secondary source may help you determine the answer. Secondary sources are only persuasive, however. A researcher cannot stop research with just a secondary source, and must make his way to a primary source to find a binding answer.
- There is no wrong answer to this question: any research project can start with either a primary or secondary source.
- Which primary source or source of the law specifically will provide the answer?
- How do you know? It helps to know there are 6 basic sources with distinct purposes (each exists on both the federal and state level):
- Establish the form of government.
- For example, the United States federal government has three branches of government (Executive, Legislative and Judiciary) because our Constitution says so.
- Establish fundamental law: legislative law (statutes) comes from the legislature who is answerable to its constituents. If enough people have “written their Congressman” and said “there ought to be a law….” the legislature should pass a law on that subject. This is basically “majority rule.” There are some subjects, however, that we are not willing to leave to the majority. This is fundamental law. Freedom of speech and freedom of religion are examples.
- Statutes – laws passed by the legislative branch of government in response to demands from constituents.
- Statutes tend to be very general and apply to society as a whole. For this reason, it is often difficult to eliminate statutes as the source of an answer.
- Where will I conduct my research? Consider these sources tools in your paralegal toolbox. Use the tool appropriate to the task.
- Law Library: You learned to use the print resources in Legal Research. It is important to know how to use print resources for three major reasons:
- Everything available on the Internet and information services like WestlawNext is based on the print resources in the library.
- Technology sometimes fails. In that case, you have no choice but to use print materials.
- You may not have computerized sources available to you because your client may not be willing to pay the cost, or you don’t have a contract with an information service.
- World Wide Web: you learned how to conduct research on the Internet in Computers in the Law Office. There are numerous pros and cons to conducting research on the Internet. The biggest downsides:
- It is often difficult to confirm the authenticity of what you have found,
- Only more recent information tends to be available,
- There may be no requirement that information remain on the Internet permanently
- A researcher generally can only find primary sources on the Internet, and it appears in its raw from with no added features like what appear with print materials.
- You will have access to guides for conducting research on the Internet in later weeks for this course.
- Information Service (Westlaw, etc.): You learned how to use WestlawNext in Computers in the Law Office as well. The sources available on these information services match the sources available in a library. However, these services are expensive. You will have access to guides for conducting research on WestlawNext in later weeks.