Latest & Greatest – The Invention of Legal Research

By Joseph L. Gerken  Published by William S. Hein & Co., Inc.  KF 240 .G47 2016

By Joseph L. Gerken

Published by William S. Hein & Co., Inc.

KF 240 .G47 2016

Have you ever wondered about the evolution of legal research and how the seed for finding the law germinated and bloomed into the system that we now employ to find relevant case law and statutes? Author Joseph L. Gerken did, and the result of his curiosity is The Invention of Legal Research. Noting that no new legal research methods were developed or conceived until computer-assisted research appeared in the 1980s, the author focuses his examination upon what it was about the so-called “golden decades” from 1870 to 1890 that revolutionized the way legal research was performed and the methods by which cases were located. He begins his analysis with a discussion of some of the early pioneers in legal publishing: Francis Hopkinson, the editor of Judgments in the Admiralty of Pennsylvania; Ephraim Kirby, the editor of Reports of Cases Adjudged in the Superior Court of the State of Connecticut; James Kent, author of Commentaries on American Law, and the seven nominative Supreme Court reporters. Of course, no discussion of legal publishing visionaries would be a complete without a mention of John West and his contribution to the formation of legal research with his National Reporter System. Gerken remarks that West’s system rose to prominence and dominated the world of case reporters because he fashioned a true nationally-focused reporter system.

This increase in the number of reporters inevitably led to the creation of the case digest and the legal citator. Digests are almost synonymous with Benjamin Vaughn Abbott and his brother Austin, who developed a system based on the holdings of the cases, rather than the cases themselves, as well as a classification scheme based on legal topics. Frank Shepard is credited with developing his eponymous citator, a work known for its accuracy, reliability, and currency. In a later chapter, the author examines the causal relationship between case reporting and case finding and the advent of the doctrine of stare decisis. Gerken attributes the stress on the precedential value of cases for the shift in the primary purpose of legal research.

Gerken also delves into the history of statutory law in the 19th century and how the notion of codification was at the forefront during this era. Two men of note in this regard are Jeremy Bentham, the inventor of the term “codification” and a staunch advocate for the adoption of an encompassing code for statutes emanating from the federal government and from individual states, and William Sampson, who kept the issue of and need for codification at the center of the legal world. Both of these men (although more so Sampson) are credited with influencing the drive to create the first American legal code, the New York Revised Statutes. The author presents a lengthy discussion of the New York Revised Statutes of 1829, historically significant for its organization of disparate laws into one place. he also speaks of the Field Code and its adoption and the first codification of federal statutes, which eventually were published as the United States Statutes at Large.

Gerken rounds out his book with a discussion of law reviews and how they influenced the law. From the earliest law journals written by lawyers and other legal professionals to the modern-day law reviews edited and published by students, Gerken examines how these periodicals “contributed to the development of legal doctrine” and defines how these journals fit into the grand scheme of legal research.

Lastly, Gerken explores the parallels between law and librarianship in the late 19th century and how both developed into sciences.

For the legal researcher, the law librarian, the legal scholar, or anyone who has in interest in the development of the methods by which legal research is carried out, The Invention of Legal Research provides a glimpse into those “Golden Decades” from 1870 to 1890 when modern-day legal research had its heyday and became “the way” of finding the law.