example of a legal research paper

Legal Research Strategy

Preliminary analysis, organization, secondary sources, primary sources, updating research, identifying an end point, getting help, about this guide.

This guide will walk a beginning researcher though the legal research process step-by-step. These materials are created with the 1L Legal Research & Writing course in mind. However, these resources will also assist upper-level students engaged in any legal research project.

How to Strategize

Legal research must be comprehensive and precise.  One contrary source that you miss may invalidate other sources you plan to rely on.  Sticking to a strategy will save you time, ensure completeness, and improve your work product. 

Follow These Steps

Running Time: 3 minutes, 13 seconds.

Make sure that you don't miss any steps by using our:

• Legal Research Strategy Checklist

If you get stuck at any time during the process, check this out:

• Ten Tips for Moving Beyond the Brick Wall in the Legal Research Process, by Marsha L. Baum

Understanding the Legal Questions

A legal question often originates as a problem or story about a series of events. In law school, these stories are called fact patterns. In practice, facts may arise from a manager or an interview with a potential client. Start by doing the following:

• Read anything you have been given
• Analyze the facts and frame the legal issues
• Assess what you know and need to learn
• Note the jurisdiction and any primary law you have been given
• Generate potential search terms

Jurisdiction

Legal rules will vary depending on where geographically your legal question will be answered. You must determine the jurisdiction in which your claim will be heard. These resources can help you learn more about jurisdiction and how it is determined:

• Legal Treatises on Jurisdiction
• LII Wex Entry on Jurisdiction

This map indicates which states are in each federal appellate circuit:

Getting Started

Once you have begun your research, you will need to keep track of your work. Logging your research will help you to avoid missing sources and explain your research strategy. You will likely be asked to explain your research process when in practice. Researchers can keep paper logs, folders on Westlaw or Lexis, or online citation management platforms.

Organizational Methods

Tracking with paper or excel.

Many researchers create their own tracking charts.  Be sure to include:

• Search Date
• Topics/Keywords/Search Strategy
• Citation to Relevant Source Found
• Save Locations
• Follow Up Needed

Consider using the following research log as a starting place: 

• Sample Research Log

Tracking with Folders

Westlaw and Lexis offer options to create folders, then save and organize your materials there.

• Lexis Advance Folders
• Westlaw Edge Folders

Tracking with Citation Management Software

For long term projects, platforms such as Zotero, EndNote, Mendeley, or Refworks might be useful. These are good tools to keep your research well organized. Note, however, that none of these platforms substitute for doing your own proper Bluebook citations. Learn more about citation management software on our other research guides:

• Guide to Zotero for Harvard Law Students by Harvard Law School Library Research Services Last Updated Sep 12, 2023 241 views this year

Types of Sources

There are three different types of sources: Primary, Secondary, and Tertiary.  When doing legal research you will be using mostly primary and secondary sources.  We will explore these different types of sources in the sections below.

Secondary sources often explain legal principles more thoroughly than a single case or statute. Starting with them can help you save time.

Secondary sources are particularly useful for:

• Learning the basics of a particular area of law
• Understanding key terms of art in an area
• Identifying essential cases and statutes

Consider the following when deciding which type of secondary source is right for you:

• Scope/Breadth
• Depth of Treatment
• Currentness/Reliability

For a deep dive into secondary sources visit:

• Secondary Sources: ALRs, Encyclopedias, Law Reviews, Restatements, & Treatises by Catherine Biondo Last Updated Apr 12, 2024 4100 views this year

Legal Dictionaries & Encyclopedias

Legal dictionaries.

Legal dictionaries are similar to other dictionaries that you have likely used before.

• Black's Law Dictionary
• Ballentine's Law Dictionary

Legal Encyclopedias

Legal encyclopedias contain brief, broad summaries of legal topics, providing introductions and explaining terms of art. They also provide citations to primary law and relevant major law review articles.  

Here are the two major national encyclopedias:

• American Jurisprudence (AmJur) This resource is also available in Westlaw & Lexis .
• Corpus Juris Secundum (CJS)

Treatises are books on legal topics.  These books are a good place to begin your research.  They provide explanation, analysis, and citations to the most relevant primary sources. Treatises range from single subject overviews to deep treatments of broad subject areas.

It is important to check the date when the treatise was published. Many are either not updated, or are updated through the release of newer editions.

To find a relevant treatise explore:

• Legal Treatises by Subject by Catherine Biondo Last Updated Apr 12, 2024 3041 views this year

American Law Reports (ALR)

American Law Reports (ALR) contains in-depth articles on narrow topics of the law. ALR articles, are often called annotations. They provide background, analysis, and citations to relevant cases, statutes, articles, and other annotations. ALR annotations are invaluable tools to quickly find primary law on narrow legal questions.

This resource is available in both Westlaw and Lexis:

• American Law Reports on Westlaw (includes index)
• American Law Reports on Lexis

Law Reviews & Journals

Law reviews are scholarly publications, usually edited by law students in conjunction with faculty members. They contain both lengthy articles and shorter essays by professors and lawyers. They also contain comments, notes, or developments in the law written by law students. Articles often focus on new or emerging areas of law and may offer critical commentary. Some law reviews are dedicated to a particular topic while others are general. Occasionally, law reviews will include issues devoted to proceedings of panels and symposia.

Law review and journal articles are extremely narrow and deep with extensive references. 

To find law review articles visit:

• Law Journal Library on HeinOnline
• Law Reviews & Journals on LexisNexis
• Law Reviews & Journals on Westlaw

Restatements

Restatements are highly regarded distillations of common law, prepared by the American Law Institute (ALI). ALI is a prestigious organization comprised of judges, professors, and lawyers. They distill the "black letter law" from cases to indicate trends in common law. Resulting in a “restatement” of existing common law into a series of principles or rules. Occasionally, they make recommendations on what a rule of law should be.

Restatements are not primary law. However, they are considered persuasive authority by many courts.

Restatements are organized into chapters, titles, and sections.  Sections contain the following:

• a concisely stated rule of law,
• comments to clarify the rule,
• hypothetical examples,
• explanation of purpose, and
• exceptions to the rule  

To access restatements visit:

• American Law Institute Library on HeinOnline
• Restatements & Principles of the Law on LexisNexis
• Restatements & Principles of Law on Westlaw

Primary Authority

Primary authority is "authority that issues directly from a law-making body."   Authority , Black's Law Dictionary (11th ed. 2019).   Sources of primary authority include:

• Constitutions
• Statutes 

Regulations

Access to primary legal sources is available through:

• Bloomberg Law
• Free & Low Cost Alternatives

Statutes (also called legislation) are "laws enacted by legislative bodies", such as Congress and state legislatures.  Statute , Black's Law Dictionary (11th ed. 2019).

We typically start primary law research here. If there is a controlling statute, cases you look for later will interpret that law. There are two types of statutes, annotated and unannotated.

Annotated codes are a great place to start your research. They combine statutory language with citations to cases, regulations, secondary sources, and other relevant statutes. This can quickly connect you to the most relevant cases related to a particular law. Unannotated Codes provide only the text of the statute without editorial additions. Unannotated codes, however, are more often considered official and used for citation purposes.

For a deep dive on federal and state statutes, visit:

• Statutes: US and State Codes by Mindy Kent Last Updated Apr 12, 2024 2444 views this year
• 50 State Surveys

Want to learn more about the history or legislative intent of a law?  Learn how to get started here:

• Legislative History Get an introduction to legislative histories in less than 5 minutes.
• Federal Legislative History Research Guide

Regulations are rules made by executive departments and agencies. Not every legal question will require you to search regulations. However, many areas of law are affected by regulations. So make sure not to skip this step if they are relevant to your question.

To learn more about working with regulations, visit:

• Administrative Law Research by AJ Blechner Last Updated Apr 12, 2024 507 views this year

Case Basics

In many areas, finding relevant caselaw will comprise a significant part of your research. This Is particularly true in legal areas that rely heavily on common law principles.

Running Time: 3 minutes, 10 seconds.

Unpublished Cases

Up to  86% of federal case opinions are unpublished. You must determine whether your jurisdiction will consider these unpublished cases as persuasive authority. The Federal Rules of Appellate Procedure have an overarching rule, Rule 32.1  Each circuit also has local rules regarding citations to unpublished opinions. You must understand both the Federal Rule and the rule in your jurisdiction.

• Federal and Local Rules of Appellate Procedure 32.1 (Dec. 2021).
• Type of Opinion or Order Filed in Cases Terminated on the Merits, by Circuit (Sept. 2021).

Each state also has its own local rules which can often be accessed through:

• State Bar Associations
• State Courts Websites

First Circuit

• First Circuit Court Rule 32.1.0

Second Circuit

• Second Circuit Court Rule 32.1.1

Third Circuit

• Third Circuit Court Rule 5.7

Fourth Circuit

• Fourth Circuit Court Rule 32.1

Fifth Circuit

• Fifth Circuit Court Rule 47.5

Sixth Circuit

• Sixth Circuit Court Rule 32.1

Seventh Circuit

• Seventh Circuit Court Rule 32.1

Eighth Circuit

• Eighth Circuit Court Rule 32.1A

Ninth Circuit

• Ninth Circuit Court Rule 36-3

Tenth Circuit

• Tenth Circuit Court Rule 32.1

Eleventh Circuit

• Eleventh Circuit Court Rule 32.1

D.C. Circuit

• D.C. Circuit Court Rule 32.1

Federal Circuit

• Federal Circuit Court Rule 32.1

Finding Cases

Headnotes show the key legal points in a case. Legal databases use these headnotes to guide researchers to other cases on the same topic. They also use them to organize concepts explored in cases by subject. Publishers, like Westlaw and Lexis, create headnotes, so they are not consistent across databases.

Headnotes are organized by subject into an outline that allows you to search by subject. This outline is known as a "digest of cases." By browsing or searching the digest you can retrieve all headnotes covering a particular topic. This can help you identify particularly important cases on the relevant subject.

Running Time: 4 minutes, 43 seconds.

Each major legal database has its own digest:

• Topic Navigator (Lexis)
• Key Digest System (Westlaw)

Start by identifying a relevant topic in a digest.  Then you can limit those results to your jurisdiction for more relevant results.  Sometimes, you can keyword search within only the results on your topic in your jurisdiction.  This is a particularly powerful research method.

One Good Case Method

After following the steps above, you will have identified some relevant cases on your topic. You can use good cases you find to locate other cases addressing the same topic. These other cases often apply similar rules to a range of diverse fact patterns.

• in Lexis click "More Like This Headnote"
• in Westlaw click "Cases that Cite This Headnote"

to focus on the terms of art or key words in a particular headnote. You can use this feature to find more cases with similar language and concepts.  ​

Ways to Use Citators

A citator is "a catalogued list of cases, statutes, and other legal sources showing the subsequent history and current precedential value of those sources.  Citators allow researchers to verify the authority of a precedent and to find additional sources relating to a given subject." Citator , Black's Law Dictionary (11th ed. 2019).

Each major legal database has its own citator.  The two most popular are Keycite on Westlaw and Shepard's on Lexis.

• Keycite Information Page
• Shepard's Information Page

Making Sure Your Case is Still Good Law

This video answers common questions about citators:

For step-by-step instructions on how to use Keycite and Shepard's see the following:

• Shepard's Video Tutorial
• Shepard's Handout
• Shepard's Editorial Phrase Dictionary
• KeyCite Video Tutorial
• KeyCite Handout
• KeyCite Editorial Phrase Dictionary

Using Citators For

Citators serve three purposes: (1) case validation, (2) better understanding, and (3) additional research.

Case Validation

Is my case or statute good law?

• Parallel citations
• Prior and subsequent history
• Negative treatment suggesting you should no longer cite to holding.

Better Understanding

Has the law in this area changed?

• Later cases on the same point of law
• Positive treatment, explaining or expanding the law.
• Negative Treatment, narrowing or distinguishing the law.

Track Research

Who is citing and writing about my case or statute?

• Secondary sources that discuss your case or statute.
• Cases in other jurisdictions that discuss your case or statute.

Knowing When to Start Writing

For more guidance on when to stop your research see:

• Terminating Research, by Christina L. Kunz

Automated Services

Automated services can check your work and ensure that you are not missing important resources. You can learn more about several automated brief check services.  However, these services are not a replacement for conducting your own diligent research .

• Automated Brief Check Instructional Video

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• Last Updated: Sep 21, 2023 2:56 PM
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How to do legal research in 3 steps

Knowing where to start a difficult legal research project can be a challenge. But if you already understand the basics of legal research, the process can be significantly easier — not to mention quicker.

Solid research skills are crucial to crafting a winning argument. So, whether you are a law school student or a seasoned attorney with years of experience, knowing how to perform legal research is important — including where to start and the steps to follow.

What is legal research, and where do I start? 

Black's Law Dictionary defines legal research as “[t]he finding and assembling of authorities that bear on a question of law." But what does that actually mean? It means that legal research is the process you use to identify and find the laws — including statutes, regulations, and court opinions — that apply to the facts of your case.

In most instances, the purpose of legal research is to find support for a specific legal issue or decision. For example, attorneys must conduct legal research if they need court opinions — that is, case law — to back up a legal argument they are making in a motion or brief filed with the court.

Alternatively, lawyers may need legal research to provide clients with accurate legal guidance . In the case of law students, they often use legal research to complete memos and briefs for class. But these are just a few situations in which legal research is necessary.

Why is legal research hard?

Each step — from defining research questions to synthesizing findings — demands critical thinking and rigorous analysis.

1. Identifying the legal issue is not so straightforward. Legal research involves interpreting many legal precedents and theories to justify your questions. Finding the right issue takes time and patience.

2. There's too much to research. Attorneys now face a great deal of case law and statutory material. The sheer volume forces the researcher to be efficient by following a methodology based on a solid foundation of legal knowledge and principles.

3. The law is a fluid doctrine. It changes with time, and staying updated with the latest legal codes, precedents, and statutes means the most resourceful lawyer needs to assess the relevance and importance of new decisions.

Legal research can pose quite a challenge, but professionals can improve it at every stage of the process . 

Step 1: Key questions to ask yourself when starting legal research

Before you begin looking for laws and court opinions, you first need to define the scope of your legal research project. There are several key questions you can use to help do this.

What are the facts?

Always gather the essential facts so you know the “who, what, why, when, where, and how” of your case. Take the time to write everything down, especially since you will likely need to include a statement of facts in an eventual filing or brief anyway. Even if you don't think a fact may be relevant now, write it down because it may be relevant later. These facts will also be helpful when identifying your legal issue.

What is the actual legal issue?

You will never know what to research if you don't know what your legal issue is. Does your client need help collecting money from an insurance company following a car accident involving a negligent driver? How about a criminal case involving excluding evidence found during an alleged illegal stop?

No matter the legal research project, you must identify the relevant legal problem and the outcome or relief sought. This information will guide your research so you can stay focused and on topic.

What is the relevant jurisdiction?

Don't cast your net too wide regarding legal research; you should focus on the relevant jurisdiction. For example, does your case deal with federal or state law? If it is state law, which state? You may find a case in California state court that is precisely on point, but it won't be beneficial if your legal project involves New York law.

Where to start legal research: The library, online, or even AI?

In years past, future attorneys were trained in law school to perform research in the library. But now, you can find almost everything from the library — and more — online. While you can certainly still use the library if you want, you will probably be costing yourself valuable time if you do.

When it comes to online research, some people start with free legal research options , including search engines like Google or Bing. But to ensure your legal research is comprehensive, you will want to use an online research service designed specifically for the law, such as Westlaw . Not only do online solutions like Westlaw have all the legal sources you need, but they also include artificial intelligence research features that help make quick work of your research

Step 2: How to find relevant case law and other primary sources of law

Now that you have gathered the facts and know your legal issue, the next step is knowing what to look for. After all, you will need the law to support your legal argument, whether providing guidance to a client or writing an internal memo, brief, or some other legal document.

But what type of law do you need? The answer: primary sources of law. Some of the more important types of primary law include:

• Case law, which are court opinions or decisions issued by federal or state courts
• Statutes, including legislation passed by both the U.S. Congress and state lawmakers
• Regulations, including those issued by either federal or state agencies
• Constitutions, both federal and state

Searching for primary sources of law

So, if it's primary law you want, it makes sense to begin searching there first, right? Not so fast. While you will need primary sources of law to support your case, in many instances, it is much easier — and a more efficient use of your time — to begin your search with secondary sources such as practice guides, treatises, and legal articles.

Why? Because secondary sources provide a thorough overview of legal topics, meaning you don't have to start your research from scratch. After secondary sources, you can move on to primary sources of law.

For example, while no two legal research projects are the same, the order in which you will want to search different types of sources may look something like this:

• Secondary sources . If you are researching a new legal principle or an unfamiliar area of the law, the best place to start is secondary sources, including law journals, practice guides , legal encyclopedias, and treatises. They are a good jumping-off point for legal research since they've already done the work for you. As an added bonus, they can save you additional time since they often identify and cite important statutes and seminal cases.
• Case law . If you have already found some case law in secondary sources, great, you have something to work with. But if not, don't fret. You can still search for relevant case law in a variety of ways, including running a search in a case law research tool.

Once you find a helpful case, you can use it to find others. For example, in Westlaw, most cases contain headnotes that summarize each of the case's important legal issues. These headnotes are also assigned a Key Number based on the topic associated with that legal issue. So, once you find a good case, you can use the headnotes and Key Numbers within it to quickly find more relevant case law.

• Statutes and regulations . In many instances, secondary sources and case law list the statutes and regulations relevant to your legal issue. But if you haven't found anything yet, you can still search for statutes and regs online like you do with cases.

Once you know which statute or reg is pertinent to your case, pull up the annotated version on Westlaw. Why the annotated version? Because the annotations will include vital information, such as a list of important cases that cite your statute or reg. Sometimes, these cases are even organized by topic — just one more way to find the case law you need to support your legal argument.

Keep in mind, though, that legal research isn't always a linear process. You may start out going from source to source as outlined above and then find yourself needing to go back to secondary sources once you have a better grasp of the legal issue. In other instances, you may even find the answer you are looking for in a source not listed above, like a sample brief filed with the court by another attorney. Ultimately, you need to go where the information takes you.

Step 3: Make sure you are using ‘good’ law

One of the most important steps with every legal research project is to verify that you are using “good" law — meaning a court hasn't invalidated it or struck it down in some way. After all, it probably won't look good to a judge if you cite a case that has been overruled or use a statute deemed unconstitutional. It doesn't necessarily mean you can never cite these sources; you just need to take a closer look before you do.

The simplest way to find out if something is still good law is to use a legal tool known as a citator, which will show you subsequent cases that have cited your source as well as any negative history, including if it has been overruled, reversed, questioned, or merely differentiated.

For instance, if a case, statute, or regulation has any negative history — and therefore may no longer be good law — KeyCite, the citator on Westlaw, will warn you. Specifically, KeyCite will show a flag or icon at the top of the document, along with a little blurb about the negative history. This alert system allows you to quickly know if there may be anything you need to worry about.

Some examples of these flags and icons include:

• A red flag on a case warns you it is no longer good for at least one point of law, meaning it may have been overruled or reversed on appeal.
• A yellow flag on a case warns that it has some negative history but is not expressly overruled or reversed, meaning another court may have criticized it or pointed out the holding was limited to a specific fact pattern.
• A blue-striped flag on a case warns you that it has been appealed to the U.S. Supreme Court or the U.S. Court of Appeals.
• The KeyCite Overruling Risk icon on a case warns you that the case may be implicitly undermined because it relies on another case that has been overruled.

Another bonus of using a citator like KeyCite is that it also provides a list of other cases that merely cite your source — it can lead to additional sources you previously didn't know about.

Perseverance is vital when it comes to legal research

Given that legal research is a complex process, it will likely come as no surprise that this guide cannot provide everything you need to know.

There is a reason why there are entire law school courses and countless books focused solely on legal research methodology. In fact, many attorneys will spend their entire careers honing their research skills — and even then, they may not have perfected the process.

So, if you are just beginning, don't get discouraged if you find legal research difficult — almost everyone does at first. With enough time, patience, and dedication, you can master the art of legal research.

Thomson Reuters originally published this article on November 10, 2020.

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The social function of preventative conflict avoidance or reliable conflict resolution can be fulfilled, lastingly, only when law is also able to offer criteria in terms of content to justify legal decisions. Since ancient times, law has therefore been characterized not only by its sanctions but also by its reference to justice. At the beginning of Justinian the Great’s Digesta (533 BCE), a collection of the works of Roman legal scholars, it is stated in that respect: “Law is the art of the good and the fair” ( ius est ars aequi et boni [ Digesten, 1.1.1. pr.]). Similar definitions can be found in other legal cultures that have not been influenced by Roman law. Yet law also involves the “authorization to coerce” (Kant, 1996, p. 25), as we learn from Immanuel Kant (1724–1804). Both sides, coercion as much as justice, have at all times during the history of humankind decisively influenced the development of law. One essential reason for the continuously tense relationship between these two dimensions of law is the strong correlation between law and human life. Friedrich Carl von Savigny (1779–1861), a distinguished German legal scholar and the founder of the so-called Historical School of Law, once noted rightly that law had no intrinsic content; it is directed toward and, at the same time, dependent on the life of human beings. This fact displays the anthropological foundation of every law. Moreover, it bears legal consequences that are concisely expressed in a canon of ancient Roman law: No one can be obligated beyond his or her capabilities ( ultra posse nemo obligatur ). This principle is rooted in the insight that a legal norm that asks too much of an individual is simply unjust.

From the viewpoint of evolutionary biology, the development of law shows itself to be a matter of adjustment to the benefit of our own species’ self-preservation and reproduction. This concept is above all based on the findings of primatology. This science informs about the phylogenetic background of Homo sapiens and allows conclusions to be drawn about the emergence of normativity in human relationships. The phenomenon of reciprocity is of major importance in this context; it can, for instance, be observed in the social behavior of chimpanzees, our closest relatives. To meet the basic challenges of self-preservation and reproduction, chimpanzees live in social groups. The advantages are obvious: The offspring is more effectively protected, and food is more efficiently secured. Our species develops affection for the building of societies, an appetites societas. Not unlike human associations, though, living in groups is never without disadvantages. These occur whenever competition arises within the group in the struggle for scarce supplies that ultimately decide on the individual fate of the group members. Chimpanzees have obviously developed the ability to ensure a regulated exchange of goods among each other. The disposition to share goods among one another considerably depends on whether the “beggar” was, in a reversed situation, also willing to share his food or to provide the “proprietor” with other “services” (e.g., “grooming”). Generosity will generally be answered likewise; parsimony will be socially sanctioned. Chimpanzees appear to have a highly developed long-term memory for social relationships; it lays the foundations for an equipment that stabilizes the social order and that sanctions deviance, for instance, through the building of coalitions. To a certain extent, the success of social associations is the result of “chimpanzee politics” (de Waal, 1982).

But are these observations of altruistic behavior compatible with the genetic self-interest that constitutes the fundamental axiom of evolutionary biology? They are and in two ways: First of all, it should be noted that the thesis of a “selfish gene” (Dawkins, 1989) does not refer to the individual or the population. These are only “agents” of the “victorious” genes, which survive at the expense of the less suitable genes. Biological evolution is genocentric. Natural selection in principle awards features that encourage survival and reproduction—not only of single individuals but also of relatives. This is at least applicable to highly developed creatures in social associations. Here, organized forms of family support have been observed. The basis to this nepotistic altruism is consequently the self-interest of each individual’s genetic programs. Their purpose, the reproduction of genetic information, is achieved through the fitness of the family. Nepotism is oriented toward this fitness.

The self-interest of nepotistic altruism for the family is different from reciprocal altruism, which, under two conditions, can also include nonrelatives: First, in the long run, solidarity must pay off for the individual, for example, when food supply is dependent on good fortune during the hunt. In this case, solidarity serves to diminish the individual risks of life; if there is no shortage in food resources, then solidarity generally vanishes, too. Second, the mechanism of reciprocity must work out. While nepotistic altruism involves the danger of a bad investment, reciprocal altruism involves the danger of an exploitation by “free riders.” In both cases, the problem expands with the size of the group and thus endangers altruistic behavior—in the end, to the disadvantage of everyone.

From the standpoint of evolutionary biology, it is evident that (moral and legal) normativity has biological roots. Norms of reciprocity help to perform the adjustment that could not be performed within the parameters of egoistic behavioral patterns. Reciprocity is the beginning of a moral consciousness that distinguishes between factual and normative behavior. But it requires stabilization by means of specified rules and sanctions. Human ability to establish a legal system and the simultaneous need to live in such a system reveals humanity’s special position in nature. This has been evident since the natural sciences have contributed to the self-enlightenment of humankind: In terms of the objective parameters of natural science, there is not much that could distinguish humans from other life-forms. Subjectively, however, our species can do nothing other than turn itself into the center of its environment; humanity has no alternative but to build its world according to its own criteria. Max Scheler (1874–1928) tried to grasp this situation in his concept of the “openness to the world.” It is meant to denote human independence from organic bondages. Man or woman is instinct driven, but also he or she possesses the ability to say “no” in order to postpone or to sublimate his or her urges. The resulting opportunity and necessity is not merely to live but to lead his or her own life. Like Nietzsche, Arnold Gehlen (1904–1976) regards a human as the “not determined animal.” Man or woman cannot be sure of his or her surroundings; he or she lacks the protective instincts. As a result of his or her biologically deficient vesting, there are no natural habitats; everything and everybody can turn into an enemy. Consequently, a human is a being whose life is constantly at risk. Thus, humans have no choice but to create their own relations to the world and to themselves through active performance. Her or his nature is culture; this is how she or he compensates for her or his “deficient constitution.” And yet woman or man is not only defenseless against her or his environments, but she or he is also dangerous. Undetermined but driven by her or his physical desires, she or he is latently threatened by degeneration. Hence, man or woman not only has to lead his or her life, but he or she also has to be led, namely by institutions. Institutions make up for his or her absent instincts; they support man or woman by obliging him or her to behave in a given way and, at the same time, relieve him or her from the burden of incessant decisions.

Institutions can evolve and persist wherever things that are taken for granted are valued accordingly. The modern world, however, is marked by an increasing absence of customs and by a growing plurality of values. Customs and values as institution-building factors are replaced by law that is in fact free of contents but still has a stabilizing effect. Humanity’s modern world is literally a world of law. The close connection between human nature and human culture, entailed by humankind’s lack of instinct and world-openness (i.e., the idea that humans are not limited by their environment but can transcend it), leaves humankind no choice but to build humanity’s life on law.

Moral and ethical claims of today’s norms have evolved from the social history of humankind. Most notably, this is true of custom. It provides tradition with a generally binding authority to which law, too, was subject for a long time. Old law was good law. Nowadays, it is typically the other way around. Accordingly, a later law overrules an earlier law ( lex posterior derogat legi priori ). In the course of time, law has emancipated itself from customs and has become more independent. Nonetheless, law remains dependent on acceptance, approval, and discernment. The phenomenon of an increasing juridification of social life should not be regarded only as a process of law’s emancipation from ethics and morals. On the contrary, in the question about the right law and about its connection with justice, the bond between law and the prelegal foundations of human social existence recurs.

Juridification is a process that commences whenever social norms lose their effect. Above all, habit and custom belong to the social norms; fashion, too, can be part of it. While habit lives on permanence and repetition, fashion is, and must be, ephemeral in order to consistently reinvent itself. Its aim is disparity; chic and elegance is not for everyone but only for the few. Habits are unspecific in this regard; one has a habit, or one does not. But a particular habit can only rise to a common law if it is shared not only by the individual but also by the majority. In the English language, this is expressed in the differentiation between habit (of the individual) and custom (of the group) (French habitude, coutume; Latin habitus, consuetude ). As opposed to habit, custom, just like the law, claims to be valid for every member of a given group. It is therefore oriented toward equality. Religion constitutes its own category of ethical norms.

The Greek term ethos illustrates the close bond between habit and custom as it is related to “habitation”: One can get accustomed to various habits. However, habit requires more than just a superficial adaptation; namely, it requires a certain inner attitude. From this, a basic attitude can evolve that shows “character.” This, too, is covered by the meaning of ethos. Accordingly, character always has to be formed first. The virtue whose ethos keeps law and ethics together is uprightness. It illuminates the ethical meaning of being right; namely, being right is to strive for the establishment of a system based on law. A dogmatic attitude, however, destroys such an order as it gives the desire to be right precedence over the right itself.

Moreover, it is part of the ethical foundation to give reasons, not only for a court judgment but also for all forms of institutionalized legal decisions. The obligation to state reasons directly results from a particular concept of justice and consequently from an ethical commandment. As per Aristotle ( Nicomachean Ethics, V 3, 1129b), justice is “perfect virtue, though with a qualification, namely that it is displayed toward others.” It is perfect, “because its possessor can practice his virtue toward others and not merely by himself.” For the judge, who can decide in favor of only one party, this means an obligation to state reasons above all toward the unsuccessful party. The winner of a lawsuit does not usually care too much for grounds; thus, the loser will ask for the grounds. Owing to the judge’s commitment to law, these grounds must be deduced from positive law. The reason for the grounds, however, is not of a legal nature but of an ethical one; this is to ensure a continuously peaceful social existence of those who were having a conflict with each other while insisting on their (assumed) legal right. The realization of fair proceedings alone, which allows each side to present their views and to be heard ( audiatur et altera pars ), contributes to this appeasement. A prudent judge will attach less value to the applause of the successful side than to the silence of the unsuccessful one. The procedural law obligates the judge only to the stating of reasons. The quality of these reasons is up to his or her professional ethics. It requires an appropriate translation of the judicial into the layperson’s language and a comprehensive conveying for the unsuccessful side. In some cases, the latent tension becomes tangible between law’s rationality and predictability on the one hand and the respective demands for material justice of all litigants on the other hand. For an appropriate decision, much will then depend on the judge’s ability to meet the ethical foundations of law.

This problem has a long history. Basically, there are still two opposing notions: Legal positivism takes the stand that the legal concept is to be understood as not including moral or ethical elements. Law is regarded as being separated from these values. Following the logic of this separating thesis, law can have any given content. The positivistic legal concept solely depends on whether a law was created in accordance with regulations and whether it is socially effective. Those who, beyond that, require the legal concept to create a just law, follow the tradition of the theory of natural law. They associate law with a claim for correctness in terms of its content that cannot be given up without giving up the legal concept itself.

In the course of time, law has occurred in many places in various shapes. Not only norms have changed and multiplied, but also legal institutions have been extensively transformed. Yet there is no shortage of attempts to define the characteristic element of law. Three approaches are of particular significance.

The first concept holds that law’s characteristic is founded on its abstract rules. This view can advert to a long historical/cultural tradition, such as Hammurabi’s Code (ca. 1760 BCE) or the Roman Twelve Tables of Law (ca. 450 BCE). The theories of natural law have also contributed to this opinion. Through Stoicism, natural law had first found its way into the philosophy of ancient Greece and later into the works of the ruling classes of ancient Rome. Cicero, for instance, adapted the idea that human life is subject to the purpose of a highest law. This legal concept is the starting point for a hierarchy of law, with the three components being eternal law ( lex aeterna ), natural law ( lex naturalis ), and human, or positive law ( lex humana, or lex positiva ). In antiquity, eternal law was understood as unchangeable and inevitably valid for everyone. Positive, or human law, contains all those norms that determine the social life of the respective society. Natural law, in turn, comprises all norms that humans and peoples reasonably share.

The notion of a legal hierarchy has gone through many enduring transformations. Among others are those that were introduced by Christianity, particularly by the influential doctrines of Augustine of Hippo (354–430) and Thomas Aquinas (1225–1274). Both do not interpret the lex aeterna as a cosmic principle but rather as the expression of God (there still are disagreements as to whether this must be interpreted as divine reason or divine will). Mutatis mutandis, the concept of a hierarchy, can also be found in modern legal systems. Examples include the precedence of international law over national law, the special status of human rights in democratic states, or the enhancement of the constitution (e.g., by the Supreme Court in the famous decision Maryury v. Madison, 1803) to the “supreme law of the land.”

Modern legal theory has seen many attempts to describe law as a coherent system of norms. The most notable representatives include, among others, John Austin, H. L. A. Hart, Ronald Dworkin, and Hans Kelsen or, more recently, Robert Alexy and Joseph Raz. Within the transatlantic discourse, the theory of Kelsen (1881–1973) has proved particularly influential. The center to his analytical reconstruction of an objective legal system is a norm pyramid: An individual legal norm derives its validity from a higher norm and itself validates a lower-ranking norm. To solve the problem of an infinite regress, Kelsen introduced the so-called hypothetical basic norm. This norm serves as a transcendentallogical condition for the coherence of a legal system. A norm is part of a legal order only when it can be deduced from the basic norm.

A fundamentally different view was held by Eugen Ehrlich (1936), which he also developed through the examination of Kelsen’s “pure theory of law.” According to Ehrlich, it is important to comprehend the “living law.” By this, he understands those rules that the citizens actually comply with. This law had to be differentiated from the “laws in the books,” as well as from laws and their concretion, through legal practice. For all these norms could not force a certain human behavior but are themselves dependent on the effective rules of social behavior. Bronislaw Malinowski has made a similar attempt to define law from the reality of community life and, above all, referred to the obligating power of reciprocity.

The third version sees law as those principles that can be deduced from the decision of legal authorities. Significant preparatory work to this was, among others, produced by Karl N. Llewellyn and E. Adamson Hoebel. Oliver Wendell Holmes (1897) put this concept in a nutshell: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” (p. 461). While in the first version, law is determined by norms and the legal system, in the second version, law is determined by social effectiveness. The former could be termed normativism, the latter vitalism. The third version regards itself as belonging to realism as it defines law according to the actual behavior of authorities. As opposed to the other two approaches, legal disputes become the center of attention. From this perspective, law is different from politics, as well as from customs and morals.

The realistic approach, just as the vitalistic approach, regards law as a social phenomenon. But it is not only the community’s compliance, which this approach examines, but also the realistic approach does not differ from custom. The focus is mainly on the authorities’ actions in case of conflict. These do not perform only a regulating function qua mediator but also offer an orientation for the citizens. Normativism and realism generally agree about the regulating function of law. To realism, it is less a result of norm parameters than it is the task of the institution, which finally has to apply the law to a case. For the obligation of legal application, especially in the light of social changes, the judge needs the faculty of judgment and creativity. However, the judge’s role is usually confined to understanding the social dimensions of a dispute between opponents, to transforming it into a legal relationship, and to settling it by means of law. Lawsuits are about the actual claims of the parties involved as well as the reestablishment of a symmetric legal relationship among them. Advanced social interventions are the responsibility of the government. In modern societies, politics typically makes use of the law to realize its targets. Yet by using the law as an instrument, politics also submits to the legal form that is, above all, the prohibition of arbitrariness (which is guarded by jurisdiction in modern constitutional states, above all by administrative and constitutional courts).

Its connection with authority also distinguishes law from other social behavioral norms, such as customs and morals, whose sanctioning mechanisms are, typically, hardly institutionalized. If and to what degree sanctions occur, in the case of norm violations, are not certain. The authority of law, on the contrary, is decisively based on the certitude that law is also enforced. It otherwise represents dead law. By no means does a sanction always have to imply coercion or physical force. A sanction’s form is not essential but the effective implementation of the decision is. For example, the Inca civilization’s prevailing penalty for community members consisted of corporal punishment, including the death penalty. However, the Inca nobles were punished with public exposure and removal from office, as they feared social death more than physical death. Modern constitutional jurisdiction is another example of effective sanctions: Constitutional courts cannot force the government to comply with their decisions. Finally, it is the court’s authority with regard to constitutional issues that the government submits to. If it does not comply, then the government’s action would most likely result in a bad public reputation for intending to practice unlawful politics in a state based on the rule of law. However, this requires the court to present itself to the public as a reliable guardian of the constitution by making equitable and wise decisions.

Evolution of Law

With the establishment of modern statehood, law changes its character. Ideally and typically, the differences can be described as follows: Prestate societies often aim at solving conflicts by reaching a consensus among the opponents during negotiations. If they fail in this attempt, then physical force is usually applied as a means of self-help. Law in modern societies, on the other hand, provides for judicial proceedings in litigations. In case of need, law is enforced by state power. Modern states can resort to a differentiated system of institutions. On the norm level, law is abstract and impersonal; it is valid for everyone in the same way and it does not regard differences in status or reputation. Thus, individuals have to take responsibility for their actions. He or she knows what to expect when violating a norm. Punishment is based on this transparency and predictability. For what reasons the individuals comply with the rules is insignificant to the law.

This distinction between exterior behaviors and inner motives is largely unknown in prestate systems. In the case of norm violation, the entire person will be regarded, not only his or her actions. Strictly speaking, the individual is not only solely responsible for his or her own behavior but also is part of a family that is just as much affected by the dispute. Every sanction has to bear this in mind. Finally, it is less about a personal punishment than it is about compensation in order to maintain the social system.

Owing to these differences, there is a long history of debates between historians and ethnologists about law as to whether the norms of prestate societies should be regarded as law or customs. By now, the views tend to accept that (in these orders) laws, morals, and customs cannot be reasonably discriminated. These elements, rather, display a process in the course of which the several fields slowly differentiate.

The order of segmentary societies is organized through extraction and kinship. These societies usually consist of small communities (villages, tribes, etc.), which live in separated areas. They lack a central political authority; each community autonomously governs its social life. The regulating norms form a mixture of religion, custom, and law. In hunter-gatherer societies, the need for legal regulations is only very low and primarily occurs in the spheres of matrimony and family. Violations of the incest ban are punished as a severe offence against the community. Adultery, assumed or actual, is among the most prevalent conflicts. Property, on the contrary, is seldom a cause of quarrel. Hardly anyone owns something that would not be owned by the others. There are scarcely incentives for covetousness; probate disputes play no role at all.

The necessity for regulation increases with the change to agriculture and settledness. The population grows and with it the significance of lineages and clans. These are the actual bearers of rights, which now increasingly refer to property and particularly to real estate. The land or the livestock belongs to the clans; they are the owners, but individuals are not. Without their association, the individual is not only poor but also defenseless. In the absence of a state monopoly on force, it is the lineages that guarantee the individual’s security, namely through the threat of a blood vendetta.

To threaten in this manner with a maximum of vengeance follows the principle of deterrence. De-escalation is therefore a major requirement for all sides. There is no norm violation that could justify an endangerment of the community as a whole. A blood feud not only destabilizes the system within but also weakens the community outwardly. Although the individuals may not live in a so-called state of nature, the respective communities do. There is no valid law or custom beyond the community “segment.” In this no-man’s-land, life is, as Thomas Hobbes put it, solitary, poor, nasty, brutish, and short. The responsibility to maintain peace within the community is all the higher; law is oriented toward this. In case of a norm violation, it is therefore less relevant to impose sanctions than to compensate for the detriment incurred or to requite in the same way through the ius talionis (“an eye for an eye”). If very serious crimes are committed, then the community as a whole unites against the culprit in order to prevent a spiral of violence. Furthermore, various norms are provided to obviate violence and to secure peace: Among the most famous are the asylum by the leopard-skin priest, purification ceremonies, and negotiations of expiatory payment, and so on.

This kind of self-regulation without political order can be kept alive only within small spaces. With spatial extension, a political form of governance evolves that is in effect founded on the precedence and subordination of lineages and clans. The reasons for these processes can vary, but they mostly lie in the person’s charisma to which certain skills are attributed. The respective clan can turn into a chiefly lineage if it succeeds in connecting the myth of a special governance competence with the myth of a special derivation (of gods or heroes). A chiefdom can comprise multiple levels, each with one hierarchical top (headman, headwoman, chief). The paramount chief is distinguished by a series of privileges to which only he or she has access (tributes, trade with prestigious objects, claims on the prey, etc.). For it is he or she who exclusively possesses direct admission to the gods. Owing to the paramount chief, the gods are well disposed toward the people and present them with fertility, rich harvest, and victory in case of war. It is also the paramount chief who makes the final decision to end disputes. These cases are of particular importance, and that is why his or her judgment usually avoids a distinct decision. The paramount chief, too, is primarily concerned about fathoming out possibilities for reestablishing social peace. To this end, it can now and then be advisable not to make his or her own decisions but to consult the gods directly through oracles or ordeals.

Yet the paramount chief’s status is fragile for three major reasons: His or her competition arises from within his or her own family, as every member of the chiefly lineage is principally able and entitled to take over the rule; although the paramount chief can protect himself or herself from a coup with personal life guards, she or he cannot prevent enemies from having the same guns at their disposal (bow and arrow, spear, and shield cannot be monopolized, but they can be independently produced by anyone); and finally, it is not in his or her hands whether the gods maintain their well-disposed attitude toward her or him. Plagues, crop failures, and other forms of disaster inevitably initiate considerable doubt about his or her rule. Rise and fission of this kind of political rule are very close.

The premodern state differs from segmentary societies and from the chiefdom in its institutionalization of political order. The information and decision-making processes become structured and are organized hierarchically. First and foremost, this is done by the establishment of a bureaucratic administration. The introduction of the written form of communication permits the collecting and processing of larger amounts of information. Archives provide experiences for future decision making, and reforms can be compassed on a grand scale. Information is gathered from bottom to top, but decisions are carried out from top to bottom. This rationalization creates space for delegation and results in a differentiation of politics: It is not only guidance, for it also turns into an organization whose routines ensure the functioning of the political association.

The organization’s effect can be felt in every scope of the state; taxes lose their character of donations, which are connected with the expectation of reciprocation (they become charges, which are mandatory duties for the financing of the state). The level of physical force within the society is lowered; it becomes illegal to take the law into one’s own hands or to feud with another citizen. The state monopolizes the instruments for the use of force, regulates the equipment of the army, supervises the arms production, and arranges for the logistics of the forces. The power to secure peace and order is not anymore in the hands of clans but rather lies in the organizing authority of politics. Lasting changes can also be observed in the field of jurisdiction: The establishment of the written form fundamentally alters the character of law. The gain in clarity is accompanied by a loss of flexibility. This generally results in an enhancement of the written text in law; some states (e.g., imperial China) even cultivate a legalistic tradition. Yet the character of the legal culture also depends on the institutionalization of jurisdiction. In ancient Rome, courts continue to play an important role under the modified conditions of the written form. In the democratic polis of Athens, however, courts are an instrument of self-help for the parties of the litigation; moreover, their character as true mass events (up to 500 judges participate in a usual hearing) necessitates a strict formalism that has not displayed much impact on the development of law contents.

Just as in segmentary societies, the law of premodern states significantly contributes to the preservation of the social order. This order, however, is marked by social differences in status. The chiefdom was already based on relationships of precedence and the subordination of clans; in premodern states, the social stratification increases. Law is primarily a question of status. The upper classes possess exclusive access to public offices and hence to political power. The lower classes, including peasants, tradesmen, and merchants, hardly possess any rights. Slaves are without any rights at all; the homicide of slaves by someone who is not their owner, at the most, results in a responsibility to compensate for the loss. Other parts of the society are also excluded from law, as they are not able to claim their own rights. Among them are mainly women and children but also wards (clients). All of them are subordinate to their protector according to Roman law, the pater familias, or the patron, who represents them before the court or at other institutions. Within this static order, the individual scarcely has opportunities for advancement. One is born into one’s fate, and this fate is cemented by the law. Correspondingly, being marginal is the significance of legislation. Law does not serve to regulate social transformation but rather to secure a social order that is founded on inequality.

Law in Modern States

Caused by dramatic social upheavals, the processes that lead to an increased concentration on lawmaking accelerate during the 16th century. Law is still seen, in general, as an expression of divine will, but as a result of religious division, the certainty about the content of this will begins to dwindle. Rather, this issue becomes the object of a dispute that irrevocably splits the Christians’ unity and leads to the destruction of Europe during the Thirty Years’ War. More and more, the idea prevails (which had already been proclaimed by Bodin, Hobbes, and others) that law alone cannot ensure peace. Peace also requires politics, more specifically, a sovereign power that holds the reins of law and justice in its own hand. Thus, law becomes an object of human creation and an instrument of a constantly growing political will to create. This is the beginning of the politicization of law. From the mid-16th century to the early 19th century, law serves more and more to consolidate the peacekeeping system of the territorial state, to reduce privileges, to control jurisdiction, and to centralize administrative structures. In the course of these developments, legislation continuously increases in importance; as a consequence, the relationship between law and politics begins to shift. Law, formerly an expression of the concept of justice, becomes less important as a binding parameter for political orientation. Whatever remains of the concept of justice is turned into nonbinding natural law, which does not endanger the legislative sovereignty of the ruler nor its peacekeeping, system-securing effect.

With the rise of the bourgeoisie as a political power, the situation changes as was manifested in America’s War of Independence (1775–1783) and in the French Revolution (1789–1799). The claim to power as a divine right is challenged just as vehemently as the state’s unrestricted authority. Instead, all of a sudden, it is a “self-evident” truth “that all men are created equal [and] that they are endowed with certain unalienable rights,” as the Declaration of Independence written by Thomas Jefferson stated in 1776. The firm belief that society can rule itself for the greater public good is the common core of the different strands of liberalism. To the liberals, law becomes a guarantor of individual liberty, that is, equal rights for everyone and not privileges just for the few. After all, it is the people, the citizens, whose cumulative effort forms the whole of society. Accordingly, people must also be granted the right to political self-determination as put forth by Abbé Sieyès in his famous pamphlet Qu’est-ce que le tiers État? (1789). It has since been the legacy of the Enlightenment era that political power can be justified only when its claim to power is democratically legitimized and legally limited. This is only one element that contributed to the process of the juridification of politics.

The other main element is the constant expansion of legislative activity in response to tremendous social transitions, for the most part caused by the Industrial Revolution. While the growing social demands intensify the political process by increasing the number of political decisions as well as their purview, an internal hierarchy is established within the European legal system. It differentiates between two principal levels of law: statutory law, which is enacted by the legislative power, and constitutional law, which is enacted by the constituent power. Constitutional law provides a regulatory framework for the establishment and purview of statutory law, but it is kept safe from a hasty interference of politics. The creation of a constitution itself differs fundamentally in its historic importance from the everyday passing of laws in a constitutional state. Most states store their own historical “constitutional moment” (Ackerman, 1989) in their collective memory. Furthermore, amending the constitution requires in most countries a much more complicated and consensus-oriented process than changing laws. This internal hierarchy between constitutional law and statutory law enables a mutual dependence of politics and law. It empowers the lawmaker to act politically, swiftly, and effectively in order to change or adapt the law according to his or her own ideas and to even create a completely new legal situation. Nevertheless, he or she must adhere to the constitutional requirements.

The sovereignty of states, which arose from the close connection between politics and law, is also of major importance in international relations. Sovereignty dominated classic international law, which came into being with the Peace of Westphalia in 1648. Until the beginning of the 20th century, international law was primarily interstate law, resulting from agreements among individual states. Rules and institutions at the international level were subject to the principle of unanimity; nothing could be implemented against the will of a state. In this regard, every state was equal in sovereignty. The sovereignty was primarily documented in the right to wage war ( ius ad bellum ). The disaster of World War I, however, led to a change of views. The League of Nations (1920) was a first attempt to transform the unrestricted right into a partial ban on war. The Briand-Kellogg Pact (1928) went even further and aimed at a general outlawing of war. But not until after World War II was the time ripe for a substantial modification of classic international law: With the Charter of the United Nations (1945), a general prohibition of force has been introduced, complemented by a global obligation to ensure peace. The multitude of transnational players and international organizations has already at the time of the Cold War (with its debilitating consequences primarily for the UN Security Council) resulted in an advancement of international law. It has become an “international law of cooperation” (Friedmann, 1964, p. 251). International human rights are increasingly established as the critical criterion for international politics.

Since the end of the Cold War, the challenges of globalization can no longer be ignored: It is manifest in the daily, global forms of communication (e.g., the Internet) and traffic (e.g., the international employment market); it appears in the form of ecological problems (e.g., climate change), which overtax the individual states as much as economical issues (e.g., unregulated financial markets).

The state’s power is no longer sufficient to protect against threats coming from inside and outside its territory (e.g., international terrorism). As these key words illustrate, the sovereignty of the state is put into question. It once was the expression of the connection between law and politics in a state; now, however, social systems and political fields begin to disengage themselves from statedefined (territorial) frameworks. Politics is increasingly dependent on transnational players, which are organized in networks and equipped with their own negotiating power. Foreign relations are no longer a government’s prerogative.

From this, crucial challenges for international law follow whose further development is part of the paramount tasks of the international community; international law has to enhance and consolidate those processes that stay abreast of the diversification of players as well as of the extension of activity levels (this also includes the divers regional orders as an autonomous level within world politics). This will require a reconsideration of the relationship between universalism and particularism in international law. The crucial question in this regard is, How much legal pluralism is possible, and How much constitutionalization of international law is necessary on the way to an effective legal order that would be worthy of the name “law of mankind”?

On the way to this effective legal order, international law has already partly developed into a regulatory law of the international public order. The sovereignty of the state is no longer an insurmountable barrier toward the international protection of human rights. The international community can and must intervene in case of gross human rights violations. This self-commitment of the international community constitutes a major break in international law. It will succeed in justifying this, though, only if the interventions themselves form an inevitable step toward the juridification of international politics. The guiding principle of legal reason is to exit the state of nature as Immanuel Kant stipulates. And he adds that as long as a free society based on law is not realized, it can, under certain circumstances, be permitted to coerce another person to exit the state of nature and to enter into the civil society organized by the rule of law. The obligation of international law is to clarify the conditions of these permitted compulsory measures. This would be a main contribution to the strengthening of international law’s legitimacy.

Abstractly speaking, the specific function of law is to protect the (normative) structure of expectations within a group against disappointments. This is primarily done by means of sanctions, which are imposed in case of disappointed expectations. At the same time, sanctions serve as incentives for the community members to fulfill the generalized expectations. The prerequisite for a socially effective, or “living” law, is not merely its standardization but also its institutionalization. Both developments are closely connected; they facilitate a division of legal work that is of major importance above all for the modern law. Under the conditions of an increasingly complex society, the uncertainty is growing as to what is expected of the individual and if this expectation is shared by others. Law tends to reduce this uncertainty by providing general rules of conduct, which are directed at everyone. The more abstract the standardization of behavioral rules becomes, the more necessary is the individualization of case decisions by appropriate institutions. The history of law is therefore as much a history of standardization as a history of institutionalization.

The invention of a triangular relationship is of crucial importance for the institutionalization of law. It consists of two conflicting parties and one impartial person, or institution, with the obligation to settle the dispute. The character of the third person can vary (judge, chief, council of elders, etc.), but its function relieves community life in several ways that can ideally and typically be summarized as follows: First, the mediation by a neutral third person represents an alternative to the logic of mutual vengeance. On principal, this contributes to a decline in violence and consequently strengthens a community’s integration capacity. Second, the function of the judge marks the beginning of an institutionalization of social roles that structure the distribution of power within a group. Socially accepted behavior and legally protected expectations connect and stabilize themselves in the respective roles; and the roles themselves forward the anticipation of sanctions and typically increase the self-domestication of the group members. This supports the interplay of leadership and followers and decreases arbitrary behavior on both sides. Third, the repetition of the application of the law and the law enforcement are augmentative, in terms of the reliability of expectations, provided that the dispensation of justice will lead to the same or to very similar results in the concrete case. This incentive can encourage the authority’s self-commitment to precedents. Furthermore, it can be a stimulus to the development of legal equality within a group, for law lives (as opposed to the privilege) not on the exception but on the rule.

Sir Henry Maine (1822–1888) regarded the transformation from law based on privileges to law based on equality as the evolutionary principle that is ultimately decisive for every legal system. His formula “from status to contract” is nowadays regarded with skepticism because of its strong teleological connotations that do not leave much room for cultural diversity. But it still expresses a valid idea: Law displays a tendency toward formalization itself. The exceptions to the rule are also put into a legal form and are, consequently, incorporated by the law. It does not turn blind to the necessity of exceptions; however, as part of legal rules, they require an intense substantiation. The limits are typically reached when the exception is reinterpreted to become the rule. Such cases raise problems of justice that let law appear to be arbitrary and thus illegitimate. According to its own intention, law forms the counterpart to arbitrary decisions as it can otherwise not fulfill its function of protecting expectations even in the case of norm violations.

The problem of arbitrariness illustrates that law’s main function, its protection of expectations, can be concretized and differentiated into a regulating function and a directing function; one is oriented toward stability, the other one toward justice. Both functions are connected: To the same degree to which a political order is based on acceptance by the citizens, the question about the legitimacy of law gains in influence for a system’s stability. Examples of historically far-reaching consequences include the great revolutions of the United States (1776), France (1789), and Germany (1989), a comparatively young example. Below these major caesuras, the pursuit of legitimate law continues. At all times, this has also been a quest for (social) justice and has thus fostered the struggle for law in modern legal systems.

For some, the field of tension between the ideal of legal equality for all citizens and the socioeconomic inequalities in modern societies presents itself as a productive challenge; to others, on the contrary, law is merely an instrument that is supposed to conceal or stabilize social inequalities in the interest of the ruling classes. These differing ideological views explain that, with institutionalization progressing, law is attributed further functions within the political system: on the one side, the function of authorizing political power; on the other side, the function of controlling political power and civilizing it. Historically, the state’s gain in power by the combining of law and politics has evoked countervailing powers that are, nevertheless, dependent on law: Liberalism and constitutionalism see law as a suitable instrument for confining politics’ claim to authority. This balancing of law and politics is based on a constant mutual adjustment that has led to a considerable juridification in all areas of modern social life.

Bibliography:

• Ackerman, B. (1989). Constitutional politics/constitutional law. Yale Law Journal, 99, 453–547.
• Alexy, R. (2004). The argument from injustice: A reply to legal positivism. Oxford, UK: Clarendon.
• Brownlie, I. (2008). Principles of public international law (7th ed.). Oxford, UK: Oxford University Press.
• Dawkins, R. (1989). The selfish gene (2nd ed.). Oxford, UK: Oxford University Press.
• de Waal, F. (1982). Chimpanzee politics. Baltimore: John Hopkins University Press.
• Donovan, J. M. (2007). Legal anthropology. Lanham, MD:Altamira.
• Dworkin, R. (1986). Law’s empire. Cambridge, MA: Harvard University Press.
• Ehrlich, E. (1936). Fundamental principles of the sociology of law. Cambridge, MA: Harvard University Press.
• Fortes, M., & Evans-Pritchard, E. E. (Eds.). (1940). African political systems. Oxford, UK: Oxford University Press.
• Friedmann, W. (1964). The changing structure of international law. London: Stevens.
• Gehlen, A. (1988). Man: His nature and place in the world. New York: Columbia University Press.
• Goody, J. (1986). The logic of writing and the organisation of society. Cambridge, UK: Cambridge University Press.
• Hart, H. L. A. (1994). The concept of law (2nd ed.). Oxford, UK: Oxford University Press.
• Holmes, O. W. (1897). The path to law. Harvard Law Review, 10, 457–478.
• Jehring, R. von (1915). The struggle for law (2nd ed.). Chicago: Callaghan.
• Kant, I. (1996): Metaphysics of morals (M. Gregor, Trans. & Ed.). Cambridge, UK: Cambridge University Press.
• Kelsen, H. (1970). Pure theory of law (2nd ed.). Berkeley: University of California.
• Lembcke, O. W. (2009). Law. In H. J. Birx (Ed.), Encyclopedia of time (Vol. 2, pp. 772–774). Thousand Oaks, CA: Sage.
• Llewellyn, K. N., & Hoebel, E. A. (1961). The Cheyenne way. Norman: University of Oklahoma Press.
• Luhmann, N. (2004). Law as a social system. Oxford, UK: Oxford University Press.
• Maine, H. S. (1963). Ancient law. Boston: Beacon.
• Malinoswky, B. (1926). Crime and custom in savage society. London: Routledge & Kegan Paul.
• Pospíšil, L. (1974). Anthropology of law: A comparative theory. New Haven, CT: Human Relations Area Files Press.
• Raz, J. (1980). The concept of a legal system (2nd ed.). Oxford, UK: Clarendon.
• Savigny, F. C. von (1975). Of the vocation of our age for legislation and jurisprudence. New York: Arno.

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Welcome to the Bristol Law Working Papers Series. The series publishes a broad range of legal scholarship in all subject areas from members of the University of Bristol Law School. All papers are published electronically and available to download as pdf files.

Working papers

Exceptions and Regulatory Autonomy (PDF, 1,504kB) Author: Joshua Paine

This paper provides a comparative overview and analysis of exceptions commonly included in Preferential Trade Agreements.

Default Norms in Labour Law- From Private Right to Public Law (PDF, 1,525kB) Author: Alan Bogg

How far can the common law limit freedom of contract in employment contracts? This paper considers the limits of freedom of contract in relation to (i) contracting out of employment status; (ii) contracting out of implied terms. It argues that public policy can impose necessary limits on the employer's contractual powers.

An Analysis of the UK–Australia FTA’s Investment Chapter (PDF, 630kB) Author: Joshua Paine

A Kantian moral cosmopolitan approach to teaching professional legal ethics (PDF, 693kB) Author: Omar Madhloom

COVID-19 at Work: How risk is assessed & its consequences in England & Sweden (PDF, 837kB) A‌uthors: Peter Andersson and Tonia Novitz

Capturing the value of community fuel poverty alleviation (PDF, 1,891kB) Authors: Colin Nolden, Daniela Rossade and Peter Thomas

Bridging the Spaces in-between? The IWGB and Strategic Litigation (PDF, 522kB)  Author: Manoj Dias-Abey

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Directed Research Projects

• Getting Started
• Preparing to Research
• The Research Process

Structuring Your Paper

Writing tips, writing resources.

• Checking your Sources
• Getting it Published

There is no strict structure to writing a legal research paper.  Unlike legal memos written for class or documents prepared for court proceedings that require formatted headings such as "Question Presented," "Statement of Facts," etc., legal research papers are not required to contain prescribed content or abide by a particular structure.

That said, below is a typical approach to organizing the content of your research project.

• Introduction (clear statement of your thesis)
• Background information (what is the existing law, if any)
• The problem (explain why the status quo does't work)
• Recommendation for change (what can be done to improve the field and how)
• Conclusion (tie back to your thesis)

If you have any questions about formatting your research project, you should seek advice from your faculty advisor.  Below are some basic guidelines, but keep in mind formatting requirements set forth by your faculty advisor will always supersede instructions provided here.

Generally, directed research papers are formatted as follows:

• 12-point font (Times New Roman or similar)
• Double-spaced lines
• One-inch margins on both sides, top, and bottom
• 10-point font for footnotes (same font as text)
• Bluebook style and rules for all footnotes citations
• Roman numerals and/or letter headings and subheadings (same font as text but bolded and/or underlined)
• Numbered pages in the footer (same font as text)

Table of Contents

Although not required (unless your faculty advisor states otherwise), a table of contents can be helpful to provide your reader with an overview of your research paper and direct them to certain sections.  Your table of contents should mirror your headings and subheadings.  Below is an example of a table of contents.

When to Cite

You must include a citation every time you refer to, paraphrase, or quote a law, case, or another's work.  Most of your sentences will include a citation.  Additionally, when you cite to a law, always cite to the primary source.

How to Cite

The Bluebook, formally titled  The Bluebook: A Uniform System of Citation , is the style manual for citing to legal documents within the United States.  You should use the Bluebook for all your citations in your legal paper.  The white page section contain the citation rules for legal academic publications.

Writing a Strong Introduction

Your introduction is arguably the most important section of your paper because many people will decide to continue reading based on the introduction.  It must grab the reader's attention and explain why what you are writing about is important.

Essentially, the reader should be able to skim the rest of your paper after reading your introduction and have a good understanding of its layout and arguments.  A good introduction should present the theme of the paper in a succinct manner while providing an overview of your paper.

Generally, a strong introduction will

• State the legal problem/issue;
• Describe why it is important and how your paper contributes to the discussion;
• Provide a road map of your paper; and
• State your conclusion.

Being Objective & Subjective

After your introduction, you should discuss background information on the issue you chose to write about.  This should be an objective overview of the relevant facts and existing law.  Your objective background information section should not be an all encompassing.  Keep this portion of your paper focused on the essential law and relevant facts that support your recommendation for change. 

The bulk of your paper lays in your discussion of the problem and recommendation for change.  This is the subjective portion of your paper.  In this section you should extract the relevant objective material to support your subjective analysis.

Writing a Strong Conclusion

Your conclusion should restate your thesis, summarize your major points, and remind the reader why the issue you've chosen is important.  The conclusion should essentially reword your introduction in a condensed fashion. 

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How to Conduct Legal Research

September 21, 2021

Conducting legal research can challenge even the most skilled law practitioners.

As laws evolve across jurisdictions, it can be a difficult to keep pace with every legal development. Equally daunting is the ability to track and glean insights into stakeholder strategies and legal responses. Without quick and easy access to the right tools, the legal research upon which case strategy hinges may face cost, personnel, and litigation outcome challenges.

Bloomberg Law’s artificial intelligence-driven tools drastically reduce the time to perform legal research. Whether you seek quick answers to legal research definitions, or general guidance on the legal research process, Bloomberg Law’s Core Litigation Skills Toolkit has you covered.

What is legal research?

Legal research is the process of uncovering and understanding all of the legal precedents, laws, regulations, and other legal authorities that apply in a case and inform an attorney’s course of action.

Legal research often involves case law research, which is the practice of identifying and interpreting the most relevant cases concerning the topic at issue. Legal research can also involve a deep dive into a judge’s past rulings or opposing counsel’s record of success.

Research is not a process that has a finite start and end, but remains ongoing throughout every phase of a legal matter. It is a cornerstone of a litigator’s skills.

[Learn how our integrated, time-saving litigation research tools allow litigators to streamline their work and get answers quickly.]

Where do I begin my legal research?

Beginning your legal research will look different for each assignment. At the outset, ensure that you understand your goal by asking questions and taking careful notes. Ask about background case information, logistical issues such as filing deadlines, the client/matter number, and billing instructions.

It’s also important to consider how your legal research will be used. Is the research to be used for a pending motion? If you are helping with a motion for summary judgment, for example, your goal is to find cases that are in the same procedural posture as yours and come out favorably for your side (i.e., if your client is the one filing the motion, try to find cases where a motion for summary judgment was granted, not denied). Keep in mind the burden of proof for different kinds of motions.

Finally, but no less important, assess the key facts of the case. Who are the relevant parties? Where is the jurisdiction? Who is the judge? Note all case details that come to mind.

What if I’m new to the practice area or specific legal issue?

While conducting legal research, it is easy to go down rabbit holes. Resist the urge to start by reviewing individual cases, which may prove irrelevant. Start instead with secondary sources, which often provide a prevailing statement of the law for a specific topic. These sources will save time and orient you to the area of the law and key issues.

Litigation Practical Guidance provides the essentials including step-by-step guidance, expert legal analysis, and a preview of next steps. Source citations are included in all Practical Guidance, and you can filter Points of Law, Smart Code®, and court opinions searches to get the jurisdiction-specific cases or statutes you need.

Searching across Points of Law will help to get your bearings on an issue before diving into reading the cases in full. Points of Law uses machine learning to identify key legal principles expressed in court opinions, which are easily searchable by keyword and jurisdiction. This tool helps you quickly find other cases that have expressed the same Point of Law, and directs you to related Points of Law that might be relevant to your research. It is automatically updated with the most recent opinions, saving you time and helping you quickly drill down to the relevant cases.

How do I respond to the opposing side’s brief?

Whether a brief is yours or that of the opposing party, Bloomberg Law’s Brief Analyzer is an essential component in the legal research process. It reduces the time spent analyzing a brief, identifying relevant authorities, and preparing a solid response.

To start, navigate to Brief Analyzer available from the Bloomberg Law homepage, within the Litigation Intelligence Center , or from Docket Key search results for briefs.

Simply upload the opposing side’s brief into the tool, and Brief Analyzer will generate a report of the cited authorities and arguments contained in the brief.

You can easily view a comparison with the brief and analysis side by side. It will also point you directly to relevant cases, Points of Law, and Practical Guidance to jump start your research.

[ How to Write a Legal Brief – Learn how to shorten the legal research cycle and give your legal brief a competitive advantage.]

How to optimize your search.

Crafting searches is a critical skill when it comes to legal research. Although many legal research platforms, including Bloomberg Law, offer natural language searching, terms and connectors (also called Boolean) searching is still a vital legal research skill and should be used when searching across court opinions, dockets, Points of Law, and other primary and secondary sources.

When you conduct a natural language search, the search engine applies algorithms to rank your results. Why a certain case is ranked as it is may not be obvious. This makes it harder to interpret whether the search is giving you everything you need. It is also harder to efficiently and effectively manipulate your search terms to zero in on the results you want. Using Boolean searching gives you better control over your search and greater confidence in your results.

The good news? Bloomberg Law does not charge by the search for court opinion searches. If your initial search was much too broad or much too narrow, you do not have to worry about immediately running a new and improved search.

Follow these tips when beginning a search to ensure that you do not miss relevant materials:

• Make sure you do not have typos in your search string.
• Search the appropriate source or section of the research platform. It is possible to search only within a practice area, jurisdiction, secondary resource, or other grouping of materials.
• Make sure you know which terms and connectors are utilized by the platform you are working on and what they mean – there is no uniform standard set of terms of connectors utilized by all platforms.
• Include in your search all possible terms the court might use, or alternate ways the court may address an issue. It is best to group the alternatives together within a parenthetical, connected by OR between each term.
• Consider including single and multiple character wildcards when relevant. Using a single character wildcard (an asterisk) and/or a multiple character wildcard (an exclamation point) helps you capture all word variations – even those you might not have envisioned.
• Try using a tool that helps you find additional relevant case law. When you find relevant authority, use BCITE on Bloomberg Law to find all other cases and/or sources that cite back to that case. When in BCITE, click on the Citing Documents tab, and search by keyword to narrow the results. Alternatively, you can use the court’s language or ruling to search Points of Law and find other cases that addressed the same issue or reached the same ruling.

[Bloomberg Law subscribers can access a complete checklist of search term best practices . Not a subscriber? Request a Demo .]

How can legal research help with drafting or strategy?

Before drafting a motion or brief, search for examples of what firm lawyers filed with the court in similar cases. You can likely find recent examples in your firm’s internal document system or search Bloomberg Law’s dockets. If possible, look for things filed before the same judge so you can get a quick check on rules/procedures to be followed (and by the same partner when possible so you can get an idea of their style preferences).

Careful docket search provides a wealth of information about relevant cases, jurisdictions, judges, and opposing counsel. On Bloomberg Law, type “Dockets Search” in the Go bar or find the dockets search box in the Litigation Intelligence Center .

If you do not know the specific docket number and/or court, use the docket search functionality Docket Key . Select from any of 20 categories, including motions, briefs, and orders, across all 94 federal district courts, to pinpoint the exact filing of choice.

Dockets can also help you access lots of information to guide your case strategy. For example, if you are considering filing a particular type of motion, such as a sanctions motion, you can use dockets to help determine how frequently your judge grants sanctions motions. You can also use dockets to see how similar cases before your judge proceeded through discovery.

If you are researching expert witnesses, you can use dockets to help determine if the expert has been recently excluded from a case, or whether their opinion has been limited. If so, this will help you determine whether the expert is a good fit for your case.

Dockets are a powerful research tool that allow you to search across filings to support your argument. Stay apprised of docket updates with the “Create Alert” option on Bloomberg Law.

Dive deeper into competitive research.

For even more competitive research insights, dive into Bloomberg Law’s Litigation Analytics – this is available in the Litigation tab on the homepage. Data here helps attorneys develop litigation strategy, predict possible outcomes, and better advise clients.

To start, under Litigation Analytics , leverage the Attorney tab to view case history and preview legal strategies the opposition may practice against you. Also, within Litigation Analytics, use the Court tab to get aggregate motion and appeal outcome rates across all federal courts, with the option to run comparisons across jurisdictions, and filter by company, law firm, and attorney.

Use the Judge tab to glean insights from cited opinions, and past and current decisions by motion and appeal outcomes. Also view litigation analytics in the right rail of court opinions.

Docket search can also offer intel on your opponent. Has your opponent filed similar lawsuits or made similar arguments before? How did those cases pan out? You can learn a lot about an opponent from past appearances in court.

How do I validate case law citations?

Checking the status of case law is essential in legal research. Rely on Bloomberg Law’s proprietary citator, BCITE. This time-saving tool lets you know if a case is still good law.

Under each court opinion, simply look to the right rail. There, you will see a thumbnail icon for “BCITE Analysis.” Click on the icon, and you will be provided quick links to direct history (opinions that affect or are affected by the outcome of the case at issue); case analysis (citing cases, with filter and search options), table of authorities, and citing documents.

How should I use technology to improve my legal research?

A significant benefit of digital research platforms and analytics is increased efficiency. Modern legal research technology helps attorneys sift through thousands of cases quickly and comprehensively. These products can also help aggregate or summarize data in a way that is more useful and make associations instantaneously.

For example, before litigation analytics were common, a partner may have asked a junior associate to find all summary judgment motions ruled on by a specific judge to determine how often that judge grants or denies them. The attorney could have done so by manually searching over PACER and/or by searching through court opinions, but that would take a long time. Now, Litigation Analytics can aggregate that data and provide an answer in seconds. Understanding that such products exist can be a game changer. Automating parts of the research process frees up time and effort for other activities that benefit the client and makes legal research and writing more efficient.

[Read our article: Six ways legal technology aids your litigation workflow .]

Tools like  Points of Law ,  dockets  and  Brief Analyzer  can also increase efficiency, especially when narrowing your research to confirm that you found everything on point. In the past, attorneys had to spend many hours (and lots of money) running multiple court opinion searches to ensure they did not miss a case on point. Now, there are tools that can dramatically speed up that process. For example, running a search over Points of Law can immediately direct you to other cases that discuss that same legal principle.

However, it’s important to remember that digital research and analytical tools should be seen as enhancing the legal research experience, not displacing the review, analysis, and judgment of an attorney. An attorney uses his or her knowledge of their client, the facts, the precedent, expert opinions, and his or her own experiences to predict the likely result in a given matter. Digital research products enhance this process by providing more data on a wider array of variables so that an attorney can take even more information into consideration.

[Get all your questions answered, request a Bloomberg Law demo , and more.]

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Legal research and writing

• Problem analysis

Research plan

• Legal encyclopedias and digests
• Legal dictionaries
• Annotated statutes
• Articles and papers
• Law reform commissions
• Blogs and website secondary sources
• British Columbia
• Finding case law
• Judicial treatment
• Legal writing
• Research guides
• Citation help
• Indigenous legal research methodology
• Research management

This page will help you analyze the legal problem you are going to research and help you identify the points your research will need to address.

Below  is a sample research plan template:

• Research Plan Format Sample (Nayyer) 2018

Planning your legal research

Once you have a handle on what your legal problem is you can plan your research accordingly.

The depth and focus of your plan will likely vary depending on the issues and your familiarity with the subject area.

Start with secondary materials

Start with secondary sources – discussions of the law – to get a grounding on the developed law and an idea of relevant legislation and leading cases on your topic. You'll find detail on secondary sources , including help in finding them, in the next section of this guide.

Legal dictionaries, legal encyclopedias, textbooks, annotated statutes, law reform commission reports, websites and blogs are all examples of secondary materials. Include these steps in your plan:

• Record the titles and dates of the material you look at
• Note down any legislation and cases that look relevant
• Make note of any potential keywords of search terms you come across

Identify relevant primary materials

Legislation is often the first primary source to consider as many legal research problems centre on the interpretation of legislation. Statutes, regulations and by-laws are all examples of legislation. Your research plan should include these steps:

• Write down the names of any potentially relevant legislation you are already aware of
• Add other legislation to this list as you conduct your research
• Update your legislation for currency
• Research your legislation for judicial interpretation

The other key primary source is case law . Be sure to pay attention to court level and jurisdiction. Your research plan should include these steps:

• Consider any leading cases you already know about for this issue
• Add other important cases to this list as you research secondary sources
• Add any cases you uncover as you note up legislation for judicial treatment
• Update or research the history of your cases for currency
• Note up your key cases for judicial treatment
• << Previous: Problem analysis
• Next: Secondary sources >>
• Last Updated: Mar 11, 2024 4:16 PM
• URL: https://libguides.uvic.ca/lrw

Researching Law School Papers

• Research papers
• Coming up with a topic
• Checking for preemption
• Expanding your research

Resources on academic legal writing

Make a research appointment.

Reference librarians are available to help you get started and research your topic. 

• Stop by the Reference Desk in the library lobby
• Email: [email protected]

Articles (UC Davis law students may access from offsite using Kerberos password)

• Stalking the Golden Topic: A Guide to Locating and Selecting Topics for Legal Research Papers by Heather Meeker
• Writing a Student Article by Eugene Volokh
• How to Write a Law Review Article by Richard Delgado
• How to Write a Law Review Article by Sean Burke

• << Previous: Expanding your research
• Last Updated: Sep 14, 2023 10:00 AM
• URL: https://libguides.law.ucdavis.edu/seminarpapers

• Queen's University Library
• Research Guides

Legal Research Manual

Develop an outline.

• Stage 1: Frame Issues and Identify Keywords
• Stage 2: Initial Research
• Stage 3: Preliminary Integration of Research and Analysis
• Stage 4: Intensive Case Research and Analysis
• Stage 5: Statute/Regulation Research
• Stage 6: Synthesize Arguments and Prepare Detailed Outline
• Stage 7: Final Writing
• Legal Encyclopedias
• Legal Journal Literature
• ICLL Search Tips
• Literature from Other Disciplines
• The Legislative Process (Federal)
• Federal Statutes
• The Legislative Process (Ontario)
• Ontario Statutes
• Finding Statutes & Bill Information (Electronic Sources)
• Finding Statutes & Bill Information (Print Sources)
• Coming Into Force of Legislation
• Status and Copies of Bills
• Online Sources
• Print Sources
• Sources for Regulations
• Finding Federal Regulations (Online)
• Finding Federal Regulations (Print)
• Using Online Sources to Update Federal Regulations
• Finding Ontario Regulations (Online)
• Finding Ontario Regulations (Print)
• Using Online Sources to Update Ontario Regulations
• Anatomy of a Decision
• Sources for Locating Full Text Decisions
• Print Reporters
• Digest Services
• Lexis Advance Quicklaw - QuickCite
• WestlawNext Canada - KeyCite
• Digests and Encyclopedias
• Sources for Case Law
• Nominate Reports (pre-1865)
• The Law Reports (LR)
• Sources for UK Legislation
• Federal Court System
• State Court Systems
• American Law Reports (ALRs)
• Legal Encyclopedias and Digests
• American Case Law
• Case Citators: Shepard's and KeyCite
• US Federal and State Legislation
• Secondary Sources on International Law
• Primary Sources of International Law
• Secondary Sources on Foreign Jurisdictions
• Primary Sources of Foreign Law
• Finding Legal Information Online
• Evaluating Online Information
• American Legal Research Guides
• British Legal Research Guides
• International Legal Research Guides
• Indigenous Research Guides
• Empirical Legal Research
• Appendix: Quick Legal Research Checklist

To focus both the research and the analysis, it is a good idea to develop a detailed written outline of how you plan to analyze the legal issues presented by the fact situation. The written outline is a work in progress. As you begin to research and analyze the relevant materials, you need to rework the outline. The outline will indicate where the analysis is strong (no further research is required) and where the analysis is weak (further research is required). The Legal Research Starting Points in this chapter is one approach to researching and analyzing a legal memorandum. The format for the memorandum is suggested in The Legal Writing Handbook . A more general approach to research is set out in The Craft of Research , but these are not the only approaches. There are many ways to develop an outline and there are many different formats for a legal memorandum. The key is to continue to develop an outline concurrently with the research and the analysis in order to focus the work. By the end of the research and analysis process, you will have a fully developed outline of your legal argument from which the memorandum may be written.

The legal solution to a problem (provided there is one) is determinable by the law as expressed in statutes and cases. The most efficient way to research these is often to use secondary sources, which include journal articles, textbooks, and encyclopedias, in order to identify relevant statutes and cases.

There is no magic to good legal research. There is no one way to do it effectively. The key is simply being knowledgeable enough about the sources so that that one can use them to retrieve the relevant law efficiently and effectively.   Determining what is "relevant" case law comes with practice. One cannot always retrieve every case on point, but one must attempt at the very least to retrieve the leading and precedent-setting cases.

This chapter outlines the kind of research strategies that may be employed when researching and analyzing a legal problem and describes which sources to consult and in what order. It provides a framework and a checklist to guide basic legal research.

When researching, it is important to remember the following:

• As a general rule, try to use Canadian sources first. If that is not possible, note the jurisdictions covered by the secondary source you are using and remember that, although perhaps persuasive, it may not be an accurate reflection of the law in your jurisdiction.
• Currency in legal research is fundamental. Note the date of the source you are consulting and update the law since that date. Remember to update beyond the secondary sources to find the most recent statutory amendments and the very latest cases.
• The legal research process is not necessarily an orderly process. Exactly which sources are consulted and in what order depends on the researcher's knowledge of the subject area, and the particular area of law covered by the fact situation.
• There are three major legal databases in Canada: the two subscription databases -- Lexis Advance Quicklaw Plus ( Lexis Advance Quicklaw for law students), WestlawNext Canada ( Westlaw Edge Canada for law students) -- and the open access CanLII . While they have some overlapping information, they also each contain unique legal information. As a law student, which one you use generally depends on the nature of the question and sometimes which interface and search algorithm you prefer. Once in practice, however, most law firms only have access to one of the paid databases, so it is good to become familiar with both, in addition to CanLII.
• Research means just that -- re-search and re-search. To increase your chance of success, you should use a combination of different search tools and strategies each time you approach a legal research problem. Legal research involves finding a balance between locating every relevant case and precisely tuning your search to exclude all irrelevant cases. Begin your research by finding a core of relevant cases, and expand from there. Spend time planning your search by considering synonyms and different ways the same concept might be expressed. Consider if boolean searching will help, such as using truncation (i.e. searching to obtain various endings of the same "word stem") and appropriate connectors. Do a series of searches, and search in more than one database. Cross-check your results by narrowing or broadening the search and by searching both by fact as well as by legal concept.
• It is good practice after consulting a particular secondary source to analyze and apply the information to the particular fact situation presented. You should be able to identify the issues, have relevant statute and case law references, and begin to organize your analysis of the problem. By doing this at each stage of your research, and before the next research step, you will save research time, identify those issues that need more research, and be able to identify what the next logical research source will be. For example, after consulting an initial secondary source you might want to make sure a particular statute has not been amended, or you might want to note up your references prior to continuing with a subject search.  
• Finally, remember to leave enough time. Secondary sources are meant to be used to define legal issues, to gain an understanding of the law and to find relevant citations. It is extremely important to leave enough time to analyze the primary materials in relation to the facts, and to write up your results in a clear and concise manner. As the following writer emphasizes, legal analysis must be based on your reading of the relevant statutes and cases:  

Read the statutes and the cases! No digest, treatise, or case synopsis service can be a foolproof legal research tool. More often than not, the resources described in a digest, book, or article only provide the analytical framework for a substantive or procedural issue. Without a complete review of the cases, and thorough updating for more recent cases and statutes, a lawyer may find in the courtroom that incomplete research will snatch defeat from the jaws of victory. --William Goodman, "Essential Research Tools for Criminal Defense Attorneys"

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• Next: Stage 1: Frame Issues and Identify Keywords >>
• Last Updated: Apr 18, 2024 10:31 AM
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• Tags: case law , common law , law , legal research , legal skills , legislation , regulations , statutes

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How to write a legal research paper: All you need to know

This article on “How to write a legal research paper: All you need to know” was written by Vridhi Rai, an intern at Legal Upanishad.

Introduction:

Law is all about analysis, critical thinking, and interpretation. Your capability to put together the analysis of the study of the issues in written form is essential in the practice of law. The research paper is one such way to express your creative and analytic thought process, your vision of the theme, and the originality of your content. The word ‘research’ means a systematic examination of material facts. It can be complex and daunting for law students. But research helps in enhancing your knowledge and cultivating your writing skills. This article will help you understand what is research paper all about and how to write a research paper.

What is a research paper?

A research paper is a piece of academic writing which is based on an author’s original composition in the research and the findings on a given theme or topic. The writing should be owned by the author himself or herself. A good research paper strives to convey the information traced by the author crisply and concisely. The paper is written to examine the theme or the provisions, present your stand on it, and showcase evidence in support in a systematic manner. The true nature of the paper shows you the purpose of the theme or topic. 

What is the aim of the legal research paper?

The aim of the legal research paper can be a subjective question since the writing will indicate what the intended outcome is. There are kinds of writings that would pave a way for courts because it geared toward a certain kind of doctrinal analysis of the court’s interaction with theory and practice. The writings are done for better interpretation of the law. It could also be used to influence policy-making and generate debates. The author has a specific objective and intended audience in mind to serve.

How to write a legal research paper?

Step-1 choose a theme or topic:.

The foremost step in writing a  legal research paper is to select a theme or topic for the research. Select topics that catch your attention or interest. You can pick topics addressing contemporary issues or topics for the intended audience you wish to cater to. It should be novel, innovative, and interesting. While choosing a topic, read pertinent issues from different sources.  You can follow legal news to search for pertinent topics.

In case, you find difficulty selecting a topic, it will be wonderful for you to approach your professors, colleagues, and friends for consultation. Also, never feel hesitant to change the theme or topic of the research, if you feel it is not the right topic or you will not able to research the topic effectively.

Step-2 Research on your topic:

Now, your next task is to research the topic extensively on your selected topic from credible sources. You can refer to different sources by reading legal research pieces from books to online sites like SCC online, Manupatra, and Kluwer Arbitration. Always remember don’t just goggle. Use conventional sources like books and articles, these will give you a broader perspective. Read as much as you can. Reading helps you understand the nitty-gritty of the law provisions. Please beware of the research as this task can be very monotonous. You might lose motivation to perform this task. But hang in there and stay motivated to find interesting facts.

Step-3 Examine and Make a plan:

After researching, your very next step is to examine and make a plan to execute writing a legal research paper. Your research will be comprehensive with ideas. Please develop a detailed outline. Try adding notes to your research work. It can be possible that you might end up adding too much information to your paper. Highlight the key findings from your study. At this stage you are required to identify the goal of your research work, it can be either argumentative or analytic. You have to determine the masses you are wishing to address. The focus and the tone of the paper should b according to the audience you are intending to reach.

To get your Legal Research Paper written by an expert. Contact us.

Step-4 writing the paper:.

The next step is to draft the research paper. Make a final outline of the research work. The outline must have the points to describe the overview of the paper. The basic mantra of legal research is the structure of the paper. The research paper writing should be creative, clear, concise, and comprehensive. The language of your research paper should be easy to interpret. The legal terminologies and material facts are generally very sophisticated and complex. The facts, you are mentioning must be backed by shreds of evidence.

The format of the legal research paper:

The paper should have a proper format that consists of writing styles, referencing styles, page numbering, spacing, and margins. It should also include the headlines, sub-headlines, citations, or credits to the authors and the scholars.

The content of the legal research paper:

The content consists of the following:

Acknowledgment : the content of the paper should include an acknowledgment section that appreciates all the contributors to the research paper for their efforts and encouragement.

Table of contents: it includes the list of the things that you have written in your research paper.

Scope of the research: the scope or object of the research includes the reason for your study. It shows you the skeleton of your research paper. You have stated the problem or issue of the paper.

A literature survey or the sources used in the study: it includes the sources you have referred to in your study. It can be primary or secondary resources. The primary resources include books, statutes, and case laws. The secondary sources include the material you have collected from law articles, journals, and compendiums online or offline.

The hypothesis of the research: the hypothesis is the idea that is suggested to explain the objective of the research conducted by the researcher. It conveys the expectations of the researcher on what basis he started studying the issues, he raised in his paper.

Abstract : abstract shows the gist of the theme you have mentioned in your study. It is like the summary of the findings in your research regarding the theme. It should be written clearly and concisely.

Introduction: the introduction should be well-written to attract the attention of the audience toward the theme you mentioned in your thesis. A glance over the initial paragraphs gives an insight to the readers of your work. The introduction determines whether the research paper is worth reading or not. It should express the research problem, the purpose of your thesis, and background details about the issue you are referring to. It should be short, crisp, and comprehensive.

The main body of the study: the main focus of the paper is the main body of the thesis. The body should be divided into paragraphs along with sub-headings for a better understanding of the facts. Each paragraph should draw the main points of your study. It should begin with the topic’s sentences and should conclude extensively. In the main body, you can add the case laws and judgments.  

The conclusion of the study: the finale of the study should include a summary of the main pointers discussed in the study, it should express your stand or viewpoint towards the research problem. The concluding para of your research can be affirmative or negative in tone. In the end, you can add some suggestive measures to your study.

References or bibliography: at the end of the paper mention the references or the sources links or sites from which you have researched the material facts.

Step – 5 edit and proofread the final draft of the research paper:

Use proper grammar, punctuation, and spelling. Proofreading will help you to find errors in your content. If you need, to make changes to the paper, check and find the logic and legality of the statement. At this stage, you check the plagiarism of your content.

The things that should be considered carefully before drafting the paper:

you need to check the validity of the judgments before mentioning them in the research paper. The validity of the bills mentioned in your study should be carefully considered. The errors related to applicability or jurisdictions should be carefully verified.

Conclusion:

Legal research is not an easy task to perform. It takes a lot of time to conduct it. Constant hard work, attention, motivation, and patience are the factors required to examine and analyze the details. It can be boring. But it will help you in brushing your skills. Your efforts and dedication toward finding more and more material facts will help in shaping you into a good researcher.

It is beneficial for law students for interpreting law provisions, policies, and judgments. It can be used as a medium to influence policy-making procedures and as a tool to aware the masses. Publication of your research papers will act as a stimulating force to your law career. It will help you build your confidence and help them transform into law professionals.

References:

• How to write a legal research paper: guide: how to write a winning research paper?- Legal Desire. Retrieved: https://legaldesire.com/guide-how-to-write-a-winning-research-paper/
• A helpful guide on writing a law research paper- Writing help. Retrieved: https://howtowrite.customwritings.com/post/law-research-paper-guide/
• How to begin with writing a legal research paper- Manupatra- youtube channel-(video file)
• How to write a legal research paper law?|research paper- Eminent law classes-(Video file)
• The aim of writing a legal research paper- the art of writing a legal research paper-Rohini Sen-letter of the law-(video file)

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Writing a law school research paper or law review note

• Books and articles

Examples of student papers

The three documents listed below were written by 2Ls for the Indiana International & Comparative Law Review. If you are writing for a seminar or an independent study, your parameters might be a little different, but these serve as good examples of general expectations for what can satisfy the advanced writing requirement.  

• Ancient Water Law in a Modern Crisis: An Analysis of Australian Water Law Reform in the United States Context
• Seizing the Initiative on Sexual Assault in the United States Military: The Way Forward
• Striking a Balance: Extending Minimum Rights to U.S. Gig Economy Workers Based on E.U. Directive 2019/1153 on Transparent and Predictable Working Conditions
• << Previous: Books and articles
• Last Updated: Jul 29, 2022 11:08 AM
• URL: https://law.indiana.libguides.com/c.php?g=1071346

Seminar Paper Research

• Topic Selection
• Preemption Checking
• Guides to Academic Legal Writing
• Interdisciplinary Research
• Evaluating Authority
• Writing the Abstract
• Problems in Constitutional Law Seminar Resources
• Food Law and Policy
• Gender and Criminal Justice Resources
• Equality and Sports

Tips for Writing an Abstract

The abstract is a succinct description of your paper, and the first thing after your title that people read when they see your paper. Try to make it capture the reader's interest.

Outline of Abstract:

Paragraph 1

• Sentence 1: One short sentence, that uses active verbs and states the current state of things on your topic.
• Sentence 2: Describe the problem with the situation described in sentence one, possibly including a worst-case-scenario for what will happen if things continue in their current state.
• Sentence 3: In one sentence, describe your entire paper--what needs to be done to correct the problem from Sentence 1 and avoid the disaster from Sentence 2?
• Sentence 4: What has been written about this? If there is a common consensus among legal scholars, what is it? (Note any major scholars who espouse this vision).
• Sentence 5: What are those arguments missing?

Paragraph 2 :

• Sentence 1-3: How would you do it differently? Do you have a theoretical lens that you are applying in a new way? 
• Sentence 4: In one sentence, state the intellectual contribution that your paper makes, identifying the importance of your paper.

(from " How to Write a Good Abstract for a Law Review Article ," The Faculty Lounge, 2012).

Sample Student Abstracts

The following abstracts are from student-written articles published in Law Reviews and Journals. These abstracts are from articles that were awarded a Law-Review Award by Scribes: The American Society of Legal Writers . You can find more examples of student-written articles by searching the Law Journal Library in HeinOnline for the phrase "J.D. Candidate."

Mary E. Marshall, Miller v. Alabama and the Problem of Prediction, 119 Colum. L. Rev. 1633 (2019) .

Joseph DeMott, Rethinking Ashe v. Swenson from an Originalist Perspective, 71 Stan. L. Rev. 411 (2019)

Julie Lynn Rooney, Going Postal: Analyzing the Abuse of Mail Covers Under the Fourth Amendment, 70 Vand. L. Rev. 1627 (2017).

Michael Vincent, Computer-Managed Perpetual Trusts, 51 Jurimetrics J. 399 (2011).

Other research guides.

NYU Researching & Writing a Law Review Note or Seminar Paper: Writing

The Writing Process

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• Next: Outline >>
• Last Updated: Jan 25, 2024 3:32 PM
• URL: https://guides-lawlibrary.colorado.edu/c.php?g=1112479

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• 15 April 2024
• Correction 22 April 2024

Revealed: the ten research papers that policy documents cite most

• Dalmeet Singh Chawla 0

Dalmeet Singh Chawla is a freelance science journalist based in London.

You can also search for this author in PubMed   Google Scholar

When David Autor co-wrote a paper on how computerization affects job skill demands more than 20 years ago, a journal took 18 months to consider it — only to reject it after review. He went on to submit it to The Quarterly Journal of Economics , which eventually published the work 1 in November 2003.

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doi: https://doi.org/10.1038/d41586-024-00660-1

Updates & Corrections

Correction 22 April 2024 : The original version of this story credited Sage, rather than Overton, as the source of the policy papers’ citation data. Sage’s location has also been updated.

Autor, D. H., Levy, F. & Murnane, R. J. Q. J. Econ. 118 , 1279–1333 (2003).

Article   Google Scholar  

Costanza, R. et al. Nature 387 , 253–260 (1997).

Willett, W. et al. Lancet 393 , 447–492 (2019).

Article   PubMed   Google Scholar  

Steffen, W. et al. Science 347 , 1259855 (2015).

Rockström, J. et al. Nature 461 , 472–475 (2009).

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