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A Thought of Legal Research with Examples and Demonstrations

Kiyoung Kim1

Summary (1 min read)

Introduction

  • They are staffed with subject-matter experts related to their missions.
  • A bill may mandate public vaccinations, but a rule will explain which age groups and demographics need the vaccination.
  • Generally, most of the administrative agencies have investigative, rulemaking, and determinative functions.

The impact of their role

  • As earlier stated, this is a major role of federal administrative agencies and this role enables them determine the rules and regulations that guide the actions of people on an issue of public policy.
  • Where they are legislative rules, they may change an existing policy or rather strengthen an existing policy.
  • To deal with the challenges associated with the transportation of goods by commercial operators in New York State, the State adopted the federal Motor Carrier Safety Regulation found in Title 49 of the Code of Federal Regulations (49 CFR) parts 390.
  • This for me is an important step which can ensure that the regulation is well understood and that there is compliance with it.

Strength and Limitations of Online Resources

  • Identify the Policy area selected: Education policy known as No Child Left Behind is a legislation passed by Congress and signed into law by President W. Bush.
  • The education policy under the legislation requires that states establish challenging academic standards for all their schoolchildren in elementary and secondary schools.
  • Others come from libraries such as Walden library online resources, private and educational research organizations, and a host of private bloggers.
  • The website also contains policies regarding the implementation of the legislation and the effect the legislation had on states.
  • The reliability and authenticity of the source – Ed.gov can be neither put into doubt nor can the information it contained be padded with any bias whatsoever.

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Electronic copy available at: http://ssrn.com/abstract=2589448
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A Thought of Legal Research with Examples and Demonstrations
Kiyoung Kim
Professor of Law and Public Policy
The Legal Research Institute
Chosun University

Electronic copy available at: http://ssrn.com/abstract=2589448
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I. The Legal System in Differences: A Focus on the Legal Research
Method
Legal System and Legal Research
The policy makers or lawyers may face the need of legal research for reasons. The
congressmen may plan to make new laws to address the challenges of their constituent or to
the interest of nation. The lawyers may need to serve their clients who like to know the legal
issues involved, the strategies to deal with their loss and recovery, and prospect for winning
the case if the dispute has gotten worse. The lawyers may practice in a solo business or might
work as an associate lawyer in the law firms. A senior lawyer or partner in some cases may
like to exploit the junior work force about the problems or grievances from the potential
clients. Since he needs to focus their attention on other matters, such as the business
expansion of his law firm or more lucrative cases in need of career hands, he may tap the
junior lawyer for the legal research, who could assist with the basis of his final legal opinion.
The memorandum, opinion letter and brief would be such forms of professional
communication for the lawyers and legal researchers. The congressman also can be
supplemented with the aid of staffs in terms of his legal expertise and grasp of the issues
standing for carrying their responsibility more effectively. For the lawyers and legal
researchers, the structure of state and federal legal system is the kind of important variants to
orient their work direction and basic frame for the most efficient and adequate scope of
search and analysis (Murray, M.D., Desanctis, C.H. , 2009). Let me recall several aspect of
legal research in the comparative purpose and from the neighborly practice or concept.
The structure of legal system actually precondition on the disposition of research
work. It is important to note and distinguish whether it would involve the federal issues or
laws or purely a state matter. Moreover, the lawyers and legal researchers may undertake the
international character of legal question which may affect their work frame of research. They
must search the different part of sections within the Westlaw or Lexis-Nexus, such as EU
laws and British materials. Hence, the basic categorization about the nature of his research
work in consideration of state, national and international phase of legal information should be
pretty determinative. That may be said analogously and in equal importance if the researchers
of social science would meditate on the methods, i.e., qualitative, quantitative and mixed one
(Frankfort-Nachmias, C., & Nachmias, D., 2008).
A more facile exposure to the structure of each level of legal system would make the
research work convenient, economical and adequate, and could lead to more an accurate,
persuasive, authoritative research outcome (2009). For example, the state law issues must be
resolved within that dimension, and so true if it could be gone with the federal law and issues.
This does not say if the comparative work for a different level of legal system would be
meaningless, but the power of persuasion would differ. For example, we may compare the
criminal law issues of Minnesota with the case law or statute of Florida which was intended

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to reform the criminal policy of Minnesota State. We may work on the comparative method
of legal research between Korea and US concerning the extent of protection on the
intellectual property right. Then the comparative way of investigation would effect on the
purpose of research. Nonetheless, the lawyers and legal researchers oftentimes are squeezed
to yield the research product based on the best direct authorities and to resolve the problems
from which the client would suffer. Then the researchers are responsible to design his
research in any more direct and reduced scale on best impact.
Between the State and Federal Legal System, and Foreign Peers
Narrowing our concern between the state and federal level, we can find it helpful the
basic understanding of structure of legal system. We can advert on the two most governing
elements about the relationship. First, the federal constitution and law are the supreme law of
land as a matter of legal hierarchy so that the state laws repugnant to the federal constitution,
statute and executive orders would not be the law of United States (Olson, K. C., 2014). The
researchers may report their findings in this context and with the logic or suggestion. He or
she also may encounter during his course of research if some state laws may be struck down
or about the history of repeal and so. Second, the constitution obligates the federal
government to ensure a Republican form of government for each state. Therefore, the
structure of state legal system could not be diverted from this constitutional dictate. For
example, the monarch could not be instituted within the state constitution. For this reason, the
structure of state government and legal system would largely replicate the typology of federal
government only with little variance in cases (State Government of Minnesota, 2014). The
Governor would be the chief executive officer in parallel with the presidency from the federal
government. The state legislature often takes the bicameralism in structure and practice.
Hence we can see the state Senate and House, which compose the two units of legislature
(2014). The state judiciary would be structured in the three tier of appeal system, which runs
through the supreme, appellate and district level of courts. Some jurisdictions would have a
different name as their highest court other than the Supreme Court, for example, superior
court. As the federal supremacy is the principle and laws of US constitution, rarely could we
find four tiers of appeal which differs from normal case of universal wisdom embedded on
the three tier appeal system. Germany and the Common Wealth of Nations may be some rare
peer if the Privy Counsel is responsible as a final jurisdictional authority for their imperial
states. German constitutional court can be considered generally superior to other sectional
supreme courts, such as federal labor court and social courts, which may exercise a final
authority. They may, then, incur four times of review about important state affairs as
presented in the form of legal dispute. The Korean controversy hedged over the decade
between the Supreme Court and Constitutional Court has arisen in this context where the
interbranch disagreement on the scope of constitutional authority came to be argued. The
point of contention would involve the issue of which court would have an ultimate say on the
interpretation of laws. The laws in their purview would cover the congressional act and

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executive orders or decrees other than the constitution. The legal system of Korea has a dual
line of judicial authority where the constitutional issues generally vests within the
constitutional court. Other than its exclusive powers and responsibilities clearly prescribed by
the written constitution, the Supreme Court is responsible for other judicial nature of
controversies. It models after the European ways of constitution in contrast with the Japanese
judiciary, say, one supreme court as the US (U.S. Courts: Federal Judiciary, 2014). The
constitutional court develops its own theory to expand their jurisdiction which enables a
scope of intervention in the constitutional authority of legislature and the Supreme Court. The
horizon to be cultivated by the constitutional court is quite consequential. The advantage on
the progress would be that the constitutional case laws have evolved in volume and its
substantial impact. It can contribute to the prosperity of constitutional culture and can well be
paired with the development of Korean Republicanism. The disadvantage cannot be
disregarded if we need to articulate on any congruent and agreeable understanding of
constitutional structure among the branches of government. It entails major interpretive issues
of constitution, which is beyond this discussion purpose. In the least, the implications on this
progress would be remarkable for the lawyers and legal researchers. Now their first priority
in the research work would be concerned which portal or website is any more direct source
for their issues or factual ground.
Differences and Legal Research
Korea is the nation state which is supreme and as the federal government of US.
The understanding of structure of legal system allows a delicate aid for the search and
analysis of legal data or documentary basis of evidence. This aspect comes largely same with
the federal and state government of US which also is relevant with the work of legal research.
Concerning the state of Minnesota, we can find some differences in relation with the legal
research despite the similar attribute of structure within the legal system (2014).
First, the legal sources would be limited than those of federal governments. The
website open to public access would contain smaller information than the Federal Registra,
for example. The hornbook or case book generally deals with the important federal issues
where some notable state cases only could eye-catch the authors interest. The Nutshell and
Emmanuel, generally a summary presentation of these sources would be destined as same.
Second, in effect of the Erie doctrine, the state law, however, should be any
determinative authority where the federal and state court judges are bound. In this context, it
is not surprising that the court reports of state case law are extensive in coverage. More
importantly, the legal researchers need to prepare themselves with the preliminary
undertaking of fact and issue analysis, which generally makes them narrowed to either the
state or federal research (Harrington, C. B. & Carter, L. H., 2009). In this sense, the two
dimensions would implicate an independent meaning for them.

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Third, the lawyers may work for the comparative investigation which may be plenary
in case of the legal reformers or law reform project. In this case, the researchers may suffer
from the linguistic challenge. They may hire an interpreter for the foreign source of authority,
but the global age makes them simpler with the English language. In some cases, however,
the legal researchers may need to present in several linguistic forms of research report, for
example, concerning the UN documents, WTO or Canadian materials. In Korea, the
interpretation project was funded by the government and the statutes, in the first place, now
see much complete form of progress. The case laws would follow which implies Korea is the
state of civil law tradition.
Fourth, the structure of government also effected to compile the tremendous case
laws in the US as Dean Roscoe Pound once lamented. The importance of precedent and much
more emphasis on the case laws since the US are common law countries allow a different
scene in their research work. His collaboration with Kelsen in laying the foundation of UN
can give an insight for the flexible mind, but equally evidence the hard nature of work to
resonate with the uniformity of legal research between the two major legal traditions.
References
Frankfort-Nachmias, C., & Nachmias, D. (2008). In Research methods in the social sciences.
Retrieved from http://store.vitalsource.com/.
Harrington, C. B. & Carter, L. H. (2009). The origin and meaning of administrative law.
Administrative Law and Politics: Cases and Comments, Fourth Ed., 26-51. Washington,
DC: CQ Press
State Goevernment of Minnesota. Retrieved Sep. 3, 2014 from http://mn.gov/portal/.
Murray, M.D., Desanctis, C.H. (2009). Legal research method, New York. NY: Foundation
Press.
Olson, K. C. (2014). Principles of legal research, Saint Paul. MN : West.
U.S. Courts : Federal Judiciary. Retrieved Sep. 3, 2014 from
http://www.uscourts.gov/Home.aspx.

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01 Jan 2009

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