Using the Law Library: A Guide for Educators-Part I: Untangling the Legal System
Hilyerd, William A., Journal of Law and Education
USING THE LAW LIBRARY, PART I
Researching legal issues can be a trying experience for individuals who do not deal with legal issues on a daily basis. This is the first in a series of articles designed to assist anyone not in the legal profession in locating legal materials. In this article, the researcher is introduced to the structure of our legal system and the legal materials created by each branch of government are identified and explained.
This article will be the first in a series of six giving guidance to teachers and other educators on locating legal materials. This installment will give an introduction to the legal system in the United States as well as give an overview of the major types of legal materials that researchers may encounter. Part II will discuss how to locate legal materials when researchers are looking for a specific case, statute, or regulation for which they already have some information. Part III will discuss the advantages of various secondary materials and the benefits of starting a search using these materials. Other methods of locating cases will be introduced in Part IV, while methods of locating statutes, regulations and other statutory materials will be covered in Part V. The final article will provide tips for dealing with special areas in education law.
While following the guidelines and suggestions given in these articles will show educators and others how to locate information on the laws governing their profession, the use of legal materials by educators for any purpose other than personal knowledge is unadvisable. While it is possible for individuals to represent themselves in court, those considering doing so should remember the old proverb "a man who is his own lawyer has a fool for his client."1 It would be very foolish to attempt to use the materials discussed in this article to avoid attorney's fees. The educator should also keep in mind that conducting legal research for someone else or attempting to explain the law regarding a certain area is considered to be engaging in the practice of law. Engaging in the practice of law without a license is illegal and may be punishable by imprisonment.2
II. WHERE DOES ONE FIND THE LAW?
The United States Constitution serves as the basis for all law in the United States and is the authority behind the powers of the various branches of our government. Article I creates the Congress and vests in it a list of legislative powers.3 Article II vests all of the executive powers in the President4 while Article III provides for the creation of a Supreme Court and any other courts that Congress should deem necessary.5 By creating the different branches, the Constitution created a separation of powers and gave each branch the authority to create certain types of law. Congress has the explicit authority to make new laws, while the courts have the authority to interpret the law and in so doing create legally binding opinions, known as precedent. The executive branch is charged with enforcing the law, but by doing so it creates legally binding rules as well.6
The Constitution also creates a division of power between the federal government and the governments of the individual states. The Tenth Amendment states "[t]he powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people."7 This division of power is commonly known as federalism. The effect of this division is that there is no single place to find the law of the United States. Unless a legal question involves a federal law or constitutional principle, the United States government has no authority to interfere in the laws made by individual states, nor do the laws of one state have any legal authority outside of that state.8 Most of the individual state constitutions divide their law-making powers in ways similar to the United States Constitution. …