I’ve previously written that I am, like Immanuel Kant, “ by inclination a researcher”.
So Bill Hudson’s recent series about a meeting of Pagosa area residents to consider the recall of a county commissioner for a possible conflict of interest caught my interest not only because I’m an Archuleta County taxpayer — but also because of Mr. Hudson’s repeated reference to “legal research”.
Having perfected, over my four-decade legal career, an advanced aptitude for legal research (even having taught the subject), and since it appears to have been critical to Mr. Hudson’s rendition of the public meeting, I would like to illuminate the subject.
Following is an explanation for non-lawyers, of what legal research involves — and how it is used.
To properly understand legal research requires basic knowledge of some legal fundamentals. First are the ‘types’ of law most commonly utilized in legal research — ‘positive’ law, and ‘common’ (‘case’) law.
Positive law is that which is promulgated by a governmental entity primarily in two forms – ‘statutes’ and ‘rules’. Statutes are enacted by a legislative body — ie: the federal Congress, a State legislature, a county or city board.
Rules can also be promulgated by those bodies, but are principally the product of administrative agencies that are themselves created by statute, and whose rule-making power is limited to that which is authorized by statutes. If there is a conflict between a statute, and an administrative rule, the statute prevails.
If an agency promulgates a rule which is beyond their statutory authority the rule is invalid. In its most recent session, the United States Supreme Court decided two significant cases in which they held that federal regulatory agencies had exceeded their rule-making authority. I explained those two cases here, and here.
Those cases followed on the heals of a 2022 decision striking down a rule the EPA didn’t have the authority to impose. I discussed that case here.
Those three decisions were based on judicial interpretation of positive laws (federal statutes). The interpretations were examples of the common (case) law.
Case law is that formulated by judges rather than a legislative or regulatory body. The origin of the common law was in customs the Anglo-Saxons of medieval England followed in conducting their every-day affairs. Common law ostensibly refers to the fact that disputes about those every-day affairs find their way into court to be resolved by a judge — who decides based on the relevant custom.
So common law is referred to as ‘judge-made law’. It’s known as case law because it results from a case (dispute) that comes before a judge to be resolved.
But case law can also be the basis for deciding what a positive law means, as occurred in those three Supreme Court cases I just referred to.
The reason judges get to interpret positive laws enacted by the legislature, was enshrined in American jurisprudence in 1803, by the United States Supreme Court decision of Marbury v Madison, in which Chief Justice John Marshall declared, “It is emphatically the province and duty of the Judicial Department to say what the law is.”
Marshall didn’t just pull that idea out of his ass. It was a concept of common law that came with the English colonists to the New World.
There are those who deride that authority of judges “to say what the law is” — but that is a derision born of ignorance. Judges don’t just arbitrarily declare what the law is, they are required to adhere to established rules in reaching a decision. If judges fail to follow the established rules about how to decide a case, their decision can be overturned on appeal. (In the case of the Supreme Court, they can subsequently reverse themselves.)
Decision-making judicial rules have evolved over centuries of usage, but their historical conceptual origin is in the customs of the people, and of the representative (the judge) of the King (a distant central government) deciding a local dispute based on local custom. So the common (case) law in effect can act as check on big government by the common people — as the Supreme Court has checked the power of the federal bureaucracy over the past two years.
That check is why our constitutional system of government is based on a separation of powers between independent branches — one of which is an independent judiciary. (If you are interested in the philosophical origin of the concept of separation of powers, and how that protects liberty, see Book 11 of Montesquieu’s The Spirit of the Laws.
Understanding separation of powers will enable you to realize why Joe Biden advocating changing the makeup of the current Supreme Court is such threat to our liberty! But that’s a tangential discussion. )
Because ours is a common-law legal system, wherein statutes enacted by the legislative branch of government are subject to interpretation by the judicial branch, you can not determine what a statute means by simply reading it. You must also find out how it has been judicially interpreted. That’s where ‘legal research’ becomes relevant… and critical…