I’m Peggy Jarrett, the Documents and Reference Librarian at the Gallagher Law Library, University of Washington. I’d like to start by thanking Cass Hartnett for inviting me. I’ll be using a power point, that you can find on our website. There is also a long guide with lots of links created for this class. The judicial branch of the United States government is made up of the federal court system and several supporting agencies. The U.S. Supreme Court was established by the Constitution (U.S.Const. art. III, § 1) and the lower federal courts were created by Congress. Judicial branch publications are often a challenge for documents librarians, because few official publications are distributed through the Federal Depository Library Program. The most important publication of the Judicial Branch – case law – is for the most part, commercially published. And the most comprehensive collection of case law on campus is at the Gallagher Law Library, which is why I’m talking to you. Do you any of you have law library experience?
Let’s start with a review of The Law. There are several types of primary law. Statutes passed by Congress or state legislative bodies. Administrative regulations promulgated by the Executive Branch (again federal or state). Cases, decided by the judicial branch. And of course the supreme law of the land – constitutions. Treaties are also law, but pretty specialized. These types of law all work together. For example: Congress passed the Endangered Species Act. The Fish & Wildlife Service (Department of Interior) and the National Marine Fisheries Service (Department of Commerce) promulgated the regulations that enforce the Act. Then the Judicial Branch interprets the Act by resolving specific disputes. And nothing in the Act can conflict with the Constitution – and that's up to the courts to decide
The U.S. is a &quot;common law&quot; country, which means our law is a body of evolving doctrine determined by judges on the basis of the cases they decide. This is opposed to a &quot;civil law&quot; country which has a set of principles articulated and set out in a code. Our legal system came from the British (common law country), not the French (civil law country) – except in Louisiana. And yes, we do have codes, or “codified law. “ You’ve already run into the United States Code and the Code of Federal Regulations in this class. So even though we have codes and the codes are law, our legal system is still considered to be a “common law” legal system.
Case law is primary law created by judges in the course of resolving disputes. It is the written resolution of the issues, written by a judge or a panel of judges. The word “case” is often used interchangeably with “opinion” or “decision.” You have to be a little careful – the word “case” also means the entire record of litigation. So a patron who is looking for information on a celebrity murder case usually wants news reports or trial transcripts. A patron who is looking for the “pledge of allegiance case” is looking for the U.S. Supreme Court opinion (and maybe the 9th Circuit opinion that was appealed to the Supreme Court). This latter “case” is what we’re talking about. It is not a jury verdict. Juries decide facts; judges decide law.
Not all opinions are published. Opinions with precedential value are published in books called reporters. Precedents are the legal principles or rules created by court opinions. Lower courts must apply these precedents in cases with similar issues and facts. This system allows similarly situated people to be treated the same. Plaintiff in King County is treated same as Spokane County. Some Gov Pubs textbooks discuss &quot;unofficial&quot; v. &quot;official&quot; sources. But with case reporting it doesn't matter! What really matters is “published” v. “unpublished.” Well, mostly. The availability of unpublished opinions – mostly online – has led to a movement to allow unpublished opinions to be cited in briefs. Sup Ct recently adopted a rule allow citations to unpublished opinions in federal courts but courts can have a local rule saying these opinions don’t carry weight. 9 th Circuit Court of Appeals – can cite unpublished opinions dated after 1/1/07 (not before) but not if the court labels then as “unpublished.” It’s confusing.
The United States Reports is the only major reporter distributed through the Federal Depository Library Program . Opinions of lower federal courts are commercially published, but they are still considered primary law. State appellate opinions are also commercially published, although some states, like Washington, have official reporters. Example: West's Federal Reporter 3d contains published decisions of the Circuit Courts. It's a commercial publication. It’s not an official publication. There is no government-produced publication for the Circuit Courts. But the opinions are still the LAW!! I’m not going to get into the names and citations of reporters – it’s something that you can easily learn if you have to. But basically, West Publishing has something called “The National Reporter System.” There are other publishers (Lexis is the other main law publisher) but West is the main case law publisher.
A generic court system consists of (1) trial courts, (2) intermediate appellate courts, and (3) the appellate court of last resort, which is often called the “Supreme Court.” Of course it’s more complicated than that in real life. On the federal level, there are specialized courts such as the U.S. Tax Court and the Court of International Trade. And on the state level there are courts of limited jurisdiction such as Seattle Municipal Court or King County District Court.
So where do the reported cases come from? On the state level, reported cases generally come from the appellate courts – not the trial courts. On the federal level, about 20% of the trial court cases are reported. Remember that in a jury trial, there is nothing to “report” except a verdict. So again, when dealing with patrons, it’s important to do a good reference interview whenever they say “I’m looking for a case.” The first question you should ask is “do you have a citation to the case?” and if not the follow up question should be “do you know what court the case is from?” From there you can ask about names, dates, subject, etc.
You can explore the court system further through official and unofficial websites. On the federal level, the site I like best is the Federal Courts Finder from Emory University Law Library. That’s probably because it has a colorful map of the federal circuits – and when you’re working with case law, you don’t find many colorful things to look at. You can find the links either through this power point or through the Judicial Branch publications guide.
Washington State has a fairly standard court structure. Our court of last resort is the Supreme Court, in Olympia. Since 1969, we’ve had an intermediate appellate court. 3 divisions. We’re in division I. Division II sits in Tacoma and III in Spokane. Our trial courts are called Superior Courts and are by county. Courts of limited jurisdiction are municipal courts, county district courts, family and juvenile courts. If any of you are Law & Order fans, I like to point out that New York is unusual. Its highest court – the court of last resort - is called the Court of Appeals. New York’s trial courts are called Supreme Courts. Which is why the District Attorney is prosecuting the offenders in the Supreme Court. In King, Whatcom, or Chellan County here in Washington – the DA’s prosecute in Superior Court .
On the Federal side, the intermediate courts of appeals are the Circuit Courts and the trial courts are the district courts. Washington is one of the many states in the 9th Circuit Court of Appeals. Washington has two federal district courts – Eastern and Western. The federal district courts also handle bankruptcy, which is a federal matter, so there are special bankruptcy courts. The 9 th Circuit is often in the news because we are the largest by far (by population and case load). For years there has been a movement to split up the 9 th , separating out California, basically. (Go Back and link to Federal Courts Finder and look at the map)
I’ve also given you a list of specialized courts and websites. These links are also in the Judicial Branch Publications guide on our website.
So, how do you find a case? It depends on if you have access to a commercial online service and/or a law library. For the public, best place to start is a Gallagher guide – Internet Legal Resources. “ Best sites” public can access for free. EX: LegalWa.org – a great site that is a joint project of the Courts, WSBA, MRSC. On the federal level, all Supreme Court cases are free online. Rest of federal case law? The free coverage is not good because most cases are commercially published. So if you have access to a commercial database, that’s best. UW users (students, faculty, and on-site public) can use LexisNexis Academic. If you are looking for cases that interpret a statute and you have access to a commercial database, or a public law library such as Gallagher, try an annotated code. You can look up the ESA in US Code Annotated or U.S. Code Service and find many, many summaries of – and citations to – case law. (USCS is on LexisNexis Academic) Secondary sources are also a great source of citations to case law. By secondary sources, we mean stuff about the law – not the law itself. Law review or journal articles, legal encyclopedias, textbooks, and practice materials are all secondary sources. There are lots of ways to find these, but that’s another class.
A word about updating. The last thing a lawyer does before submitting a brief to a court is update the cases. You want to make sure that your case is still good law – meaning it hasn’t been reversed or overruled by a higher court. Reversed or overruled opinions are not deleted from reporters – you can’t tell by looking, you have to use a specialized (commercial) too). Two major systems: Keycite (online, West) and Shepard’s (print & online, Lexis). Public at Gallagher can use Keycite, some print Shepard’s, and Shepard’s on LexisNexis Academic. How to update is a whole lecture for law students, so at the moment, I just want to plant that seed. Google is not a good place to look for caselaw! Well, usually – and by that I mean if it’s a hot unreported case, you might find it on the web. But it’s not the first place to look.
Here are some links to what we think are “best sites,” taken from Internet Legal Resources. I already mentioned LegalWa.org. It’s THE place for Washington case law. For the U.S. Supreme Court there are many options. Your choice may depend on the date range, but you might like the look and feel of Cornell’s Legal Information Institute or you might prefer FindLaw. It’s important to note that on the U.S. Supreme Court’s own site, they have PDF version of the bound volumes of opinions. Even so, they have a caution that says: Caution: Only the printed bound volumes of the United States Reports contain the final, official opinions of the Supreme Court of the United States. In case of discrepancies between a bound volume and the materials included here--or any other version of the same materials, whether print or electronic, official or unofficial--the printed bound volume controls . What this points out is that in law, paper still rules. There is a reason that we still have shelves and shelves of physical reporters.
This next slide gives you some more sites and strategies. Official court websites and FindLaw are pretty straightforward. Note LexisOne. Lexis, as you know, is a huge commercial database. You might be familiar with LexisNexis Academic, and I recommend you check it out. There is also a Lexis version for law students and faculty, and there is Lexis for commercial clients such as law firms. What’s not as well known is LexisOne. It’s free if you do register. You can search and retrieve the last 5 years of all 50 state appellate cases and all U.S. Circuit Court cases. Plus, the entire run of U.S. Supreme Court cases. What about U.S. District Court cases? People do want them – for example, the spotted owl cases were decided by the U.S. District Court for the Western District of Washington. Options are limited. Try the court website, try Google (this is a time Google might be appropriate), or try contacting a law library. That’s usually the best.
Best place to go if you aren’t a law student and have access. UW restricted means any on-site user as well as faculty, staff, students on-site or remotely. Last year, unavailable to on-site non-UW users. Made a huge difference in the reference office. Particularly Federal District court cases, Shepard’s, and all the finding tools.
Briefs and oral arguments are often of interest to patrons. They are not judicial branch publications, since they aren’t written by the judicial branch, but they are part of the court record. Briefs are written arguments submitted by the parties to an appellate level court. They are designed to be persuasive; they contain legal arguments, analysis, and references to primary and secondary sources. Some larger law libraries have collections in paper and/or microfiche. Gallagher has the US Supreme Court briefs in paper and fiche, the US Supreme Court Oral Arguments in fiche, the 9th Circuit briefs in paper, and the later Washington Court of Appeals and Supreme Court briefs in fiche (earlier in paper). We are only one of two libraries to hold the 9th Circuit briefs in paper and only one of a dozen or so to hold the paper US Supreme Court briefs. Why? They are huge collections that require a lot of care and feeding, despite that fact that they aren’t cataloged. Some briefs and oral arguments are online (next slide for guide)
Some briefs and oral arguments are online and there is audio of some oral arguments available. See our guide for a description of print, fiche and online sources. You might be surprised at how useful the audio can be. I once had a patron ask how to pronounce a party’s name in a Supreme Court case. We went to the Oyez site and listened to the opening of the case – and the pronunciation of the names of the parties.
PACER offers access to Federal case dockets, which are records of court proceedings. Some steps in a proceeding involve the filing of certain types of documents (like pleadings – the formal allegations of claims and defenses). Some of those are available on PACER. Congress gave the Judicial Conference of the US the authority to impose user fees. Big issue with law libraries = PACER and the FDLP. After many years of discussing, the Judicial Conference approved a 2-year pilot project with a very limited number of libraries (16). We applied, but did not get a spot (no libs in Wash, Ore, 2 county law libs in Calif and the Alaska State Courts. Nothing east of here until Michigan. It’s a weird list.). Since it just started, I don’t know how well it’s going. Gallagher does have account, but we only use it for faculty. No public access, potentially too expensive.
Let’s move on to the business of the Judicial Branch. Administrative Office of the United States Courts handles nonjudicial administrative business and maintains workload statistics. Workload stats tell you how many cases are pending, how many commenced, and how many terminated. Lots of useful tables for researchers. Federal Judicial Center provides policy research and continuing ed. Produces many reports & studies on a variety of topics – capital case litigation, employment discrimination, & judicial ethics. Recent publications are full text online at FJC website. For judicial business publications – reports, studies, newsletter - the traditional reference sources work: search library catalogs. Many have also been captured by the Federal Depository Library Program.
The U.S. Sentencing Commission develops guidelines and policies regarding sentencing in federal courts. In 2005, the Sup Ct made the federal guidelines advisory (not mandatory). The goal is uniformity. Big issue is disparity between crack and powder cocaine sentences. Congress enacted tough guidelines for crack cocaine in 1986 (5 years for 5 grams v. 5 years for 500 grams of powder). In Spring of 2007, Sentencing Commission voted to allow inmates to seek reduced sentences for crack cocaine citing racial disparities. In December, the Sup Ct gave judges leeway to deviate from guidelines in 2 cases – one dealing with crack cocaine. Reaffirmed guidelines are advisory. The next day, the Sentencing Commission made spring decision retroactive opening the door for thousands of inmates to petition for reduced sentences. Congress still needs to deal with those mandatory sentences for crack – maybe we’ll see hearings. States have sentencing guidelines commissions, but in 2004, the US Supreme Court struck down Washington State’s sentencing system.
I just want to briefly touch on administrative agency decisions – which could actually be an entire lesson. Most administrative agencies have a quasi-judicial function. They decide (adjudicate) individual cases arising from the application of their rules and regulations. Sometimes the word “order” is used as well as “decision” - an individual might be ordered to comply with a regulation, for example. Few decisions are in the Depository program, but not that many are published in the same way judicial case law is published. Still, law librarians feel strongly that Admin Dec should be in FDLP and in a tangible form. It’s the “law” so it’s Essential.
The best place to look is a website compiled and maintained by the University of Virginia library, called Administrative Decisions & Other Actions. For Washington State, take a look at a list compiled and maintained by one of my colleagues. The lesson here is to use both the web AND law library resources. Lots of agencies put their decisions online now, but law libraries also have expensive commercial publications that may contain administrative decisions. If you are looking for a decision in a highly regulated area of interest to practicing attorneys – tax, securities, or environmental law, for example – a law library might subscribe to a print or online source containing those decisions
To wrap up, I’d like to remind everyone that the University of Washington Gallagher Law Library is open to the public. I’ve provided links to some of the highlights on our website, including our UW community email reference form. You can find more information on Judicial Branch publications – and more URLs, of course – in the guide created just for this class. Questions?