Legal Commentary

Tips on Using the Right Search Terms When Researching Old Cases

By Eugene Volokh

I?m working now on the Fourth Edition of my Academic Legal Writing book (which should be out late this Spring), and I wanted to add, among other things, some tips on researching old cases. Here?s one draft subsection, which is focused on finding the right search terms to use ? I?d love to hear any other tips you might have on this subject.

Note that there will be other subsections, which I?ll post soon, on other questions related to historical research, such as the importance of looking at old treatises, a list of available electronic sources, a list of old case reporters that aren?t on Lexis and Westlaw, and the like. In this post, I just want to focus on the importance of keeping one?s eyes open to the need to find the right search terms, and solicit further thoughts from you folks on the subject. (I?m not so much looking for other examples of old synonyms for modern terms, though a few of those might be nice, too; rather, I?m looking for tips that I could pass along to students about how they can find such synonyms on their own ? something like what I try to get at in the last few paragraphs of what follows).

You can search through many more historical sources online than there you could have just a few years ago. But you need to know what to search for.

Searching for text(?intellectual property?) & date(< 1/1/1900), for instance, will yield three cases; but this is not because nineteenth-century lawyers didn?t see copyrights as property (as I?ve heard some suggest). Rather, they spoke of literary property, and a search for text(?literary property?) & date(< 1/1/1900) yields 58 cases. If you want to find early cases that deal with what we?d now call ?symbolic expression? or ?expressive conduct,? you?d need to search for the term ?signs? (often appearing in the phrase ?signs or pictures?). If you?re searching for ?freedom of the press,? you should also search for ?liberty of the press.?

Likewise, if you want to find early references to the right to trial by jury in civil cases, you should search for ?Ninth Amendment? as well as ?Seventh Amendment.? The first Congress proposed twelve amendments to the states; what we call the Bill of Rights consists of amendments three through twelve of that set. The first two amendments were not ratified at the time, but they were included in the numbering by some people for at least about 25 years. Thus, Hunter v. Martin, an 1815 Virginia Supreme Court (just to give one example) speaks of the ?9th article of the amendments? and the ?ninth amendment? to refer to the civil jury trial right, ?the twelfth amendment? to refer to what we now call the Tenth Amendment, and ?the eight amendment? to refer to the Sixth Amendment rights to speedy trial and jury trial.

How can you find such translations from modern terms into the older ones?

First, keep your eyes open. If you read an old copyright case and see it talk about ?literary property,? recognize that this might be a search term that could find more cases for you.

Second, read the old treatises to see what terms they use.

Third, independently look up the cases that are cited by the cases and treatises you?ve found, and that cite them in turn, rather than counting on your electronic keyword searches to find all the cases you need.

Full post as published by The Volokh Conspiracy on January 23, 2010 (boomark / email).