Academic Legal Writing - Eugene Volokh [55]
a. a case reported in the New York City-Hall Record,
b. a grand jury charge reported in Addison's Reports,
c. passages from St. George Tucker's edition of Blackstone's Commentaries, Chancellor Kent's Commentaries on American Law, and a manual for Justices of the Peace,
d. an editor's note in an early collection of Pennsylvania statutes,
e. an argument, made by a legislator who later became a federal judge, published in the Proceedings and Debates of the General Assembly of Pennsylvania,
f. a prominent lawyer's essay on libel published in a newspaper,
g. a grand jury charge reproduced in Francis Wharton's State Trials of the United States, and
h. four trial judges' charges to juries, which were published in newspapers.
All these were important sources for showing what the law during that time actually was. And I wouldn't have seen them if I had limited myself to Lexis and Westlaw searches.
6. Watching out for past legal conventions
“The past is a foreign country: they do things differently there.”12 You need to watch out for these differences, especially the subtle ones. Today, for instance, we assume that anything published in a reporter, such as U.S. Reports, is either an opinion of the Justices or a headnote prepared by the publisher. But in the 1800s, published reports often began with a summary of the arguments of the lawyers—the great quote your Westlaw search found might well be an argument from an advocate, not a statement of the law from a Justice.
Likewise, we generally assume that cases in U.S. Reports come from the U.S. Supreme Court; but all the cases in volume 1 of U.S. Reports are actually Pennsylvania state court cases. Likewise, many cases from volumes 2, 3, and 4 came from Pennsylvania state courts, Delaware courts, lower federal courts, and the Federal Court of Appeals in Cases of Capture (established under the Articles of Confederation). Statements such as “The Supreme Court recited these requirements in the The Amiable Isabella[, 19 U.S. 1, 5 (1821)]. In Purviance v. Angus, 1 U.S. 180 (1786), the Supreme Court stated ....,” are thus mistaken: Purviance was decided not by the U.S. Supreme Court but by the High Court of Errors and Appeals of Pennsylvania.
So read everything carefully. Make as few assumptions as you can, and keep your eyes open for signals that something is amiss. The date on this case is 1786—was there even a U.S. Supreme Court in 1786? The line about Justice so-and-so delivering the opinion of the Court is in the middle of the case report; might the preceding materials be something other than the court opinion?
7. Watching out for old citation formats
Old cases often used citation formats that are quite different from the ones you're used to. They often cited then-familiar treatises using abbreviations, such as “Bl. Com.” for Blackstone's Commentaries. They also generally cited cases by using the name of the person who published the case report, so that Marbury v. Madison was generally cited as “1 Cranch 137,” with no reference to the U.S. Reports (which didn't yet exist). Old English cases were likewise cited using what is now called the “nominative citation” system, such as “2 Wils. K.B. 203.”
If you're not sure what a citation means, you can look it up in a reference work such as Bieber's Dictionary of Legal Abbreviations, which is largely searchable on Google Books. You can just go ahead and try to find a case using Westlaw and Lexis (which recognize many of the alternate reporter names) or HeinOnline (which lets you search English cases using the nominative citation format). Or if you've tried these things and failed, you can ask your law library's reference librarians.
8. Finding the right terms to search for
You can search through many more historical