Legal Research and Reasoning
From LibertyActivism
Contents |
About This Article
Across the internet and even on this website there is a great deal of discussion about unlikely legal theories and techniques that activists may use in legal settings, in particular in court. This article seeks to give some guidance for those who wish to work within the system, and to play by the system's rules to achieve whatever outcome the player is seeking. The outcome may be getting out of jail immediately, or it may be making the court look oppressive by being sent to jail. The point is that this article is probably not going to help people who want to go into court to challenge the court's legitimacy, and certainly isn't created for situations in which you are willing to go limp and be dragged into court rather than to walk in voluntarily.
As the person who created this article resides in New Hampshire, specific references will be to New Hampshire law. If you are a liberty activist who lives in a state other than New Hampshire, then you should move to New Hampshire as soon as possible.
Legal Research
The Role of Legal Authority
Anyone can come up with a legal theory, and legal theories abound. But you probably do not want to rely on a legal theory that will not pass the "laugh test" in court. You may have heard, for example, that writing your name in all capital letters on a document has a different legal effect than writing it in lowercase letters. How would you know if such a claim is legally valid? How would a judge in court know? You have to ask "what is the legal authority?"
According to contemporary belief, at some point in the past all the people in the jurisdiction got together and voted to approve a constitution that describes the operation and rules of government. It's often called "the highest law of the land." That sounds pretty authoritative. So if, for example, you want to argue in court that you have a right to keep and bear arms in defense of yourself, the New Hampshire State Constitution would be legal authority for that assertion, because Art. 2-a contains language that says as much.
Constitutions tend to divide government up into three divisions: legislative, judicial, and executive. Each division creates its own legal authority. Legislatures enact laws, usually called statutes or ordinances. Courts publish opinions explaining decisions in disputes called cases. Executive agencies create regulations.
Those are the primary legal authorities: constitutions, statutes, cases, regulations. Primary legal authorities are the best way to know what the law "is." Now, it's true that not all successful legal arguments are supported by a reference to a statute, case, regulation, or constitution. Tradition or public policy can support a legal argument, but usually those arguments will be used where one is trying to change the law, and that usually happens at higher levels of courts, such as the Supreme Court. If you're going into traffic court or district court, you will probably be more interested in what the law is now.
So, for example, if someone tells you that a fictional version of you was created when your mother applied for a birth certificate, and you want to know if this is accurate or not, your first question should be: what's the legal authority for that assertion? Is it a court case? Is it a statute? Is it a regulation? If there is no legal authority, then it's probably not the law.
Examples of sources that are not legal authorities include:
- Newspaper articles
- Wikipedia pages
- Posts on internet forums
Where Do I Find Legal Authorities
The best place to do legal research is in a law library, not only because all the materials are there, but because reference librarians who might want to help you are there. In New Hampshire there is a public law library at the Supreme Court. You have to go through security to get in, and you won't be able to bring lunch or a firearm inside. A great deal of the same material is available at city libraries and university libraries. The Manchester City Library has all New Hampshire court cases and statutes, as well as some other selected legal materials.
Internet Legal Research
Unfortunately, access to primary legal authorities on the internet is not as broad as it could be. An important limitation is the fact that, contrary to popular belief, New Hampshire's RSAs are not available online for free.
Who Puts The "A" in RSA?
In some states you will find two sets of published statutes on the library shelf. For example, in Washington State there is the RCW, or "Revised Code of Washington," and the RCWA, the "Revised Code of Washington Annotated." The first is an official publication of the State of Washington and contains only the text of the statutes. The second is a privately published set of books that contains not only the text of the statutes, but also the annotations. In New Hampshire, the State does not publish an unannotated hard-copy version of the Revised Statutes, so nobody ever refers to the RS; there's only one version, and it's the RSA. Revised Statutes Annotated. So, what's an annotation?
What's an Annotation?
Courts are the final authority for interpreting statutes, so even if you read a statute and you think you understand what it means, you still don't know that courts will read it the same way. To be thorough in your research you must look at cases where courts have interpreted that same statute that you are interested in. Nowadays technology is available to search through the text of judicial decisions, but you can imagine that not very long ago, finding such cases would have been near impossible.
Annotations are references to cases that turned on the statute in question, and each section in the annotated statutes lists the leading cases dealing with that section. Having the cases in which a statute was interpreted listed in the same book as that statute saves a researcher an incalculable amount of time determining how a court will likely read that statute in the future. That's why publishing annotated versions of the statutes has been very lucrative.
Now, back to New Hampshire. This website has New Hampshire statutes, but not the annotations. It's not the RSA, it's just the RS. It's useful to a point, but dangerous to rely on if you're in a real-life legal situation. This author knows of no free online source for the full RSAs. Fortunately many libraries have them, both in print and on CD-ROM.
