Based on some of the Google, Bing, or Yahoo searches that have led people to my blog, such as one for “writing fiction researching law,” I suspect some of my readers are writers trying to research the law as background for their next book. I thought it might be helpful if I did a quick introduction to a handful of American legal concepts and legal research tools for non-lawyers. This is not an exhaustive list. If anyone has additional tips for non-lawyer writers, please add your thoughts in the comments section.
Why Should I Research The Law for My Work of Fiction?
Unless your novel takes place on another planet, a parallel universe, or on a deserted island, your novel may touch on issues for which a legal framework exists. As an author, you are free to ignore it, but if you are aiming to give your novel a realistic feel, you may want to know a little bit about how the law would apply to your fictional scenario. I appreciate novels that comport with an accurate understanding of the law because books and television are among the ways people learn about the world around them. In an example taken from television, many believe that shows like CSI, with its exaggerated depiction of forensic investigations, may affect the beliefs jurors carry into the courtroom, thus impacting whether justice is served.
You are free to change the legal rules in your fictional universes, but if you do not make your alternate legal framework explicit, the result will look poorly-researched rather than creative. For example, a novel in which a person is sued for copyright infringement for plagiarizing Shakespeare would be just wrong, unless you decide to change the law in your novel and make it explicitly the case that all works, no matter how old, are under copyright.
What Law Applies to the Scenario in My Novel?
Put simply, certain areas of U.S. law are governed primarily by federal law (U.S. Constitution and laws enacted by U.S. Congress and the President and usually interpreted by federal courts) and other areas of law are governed primarily by state law (state constitutions and laws promulgated by state legislatures and governors and usually interpreted by state courts). There are also laws and legal systems specific to native tribes. Determining what laws apply to any scenario is complicated, but these are the basics.
Most areas of law have some degree of overlap between federal and state laws. For example, when it comes to workplace rights, Title VII of the Civil Rights Act of 1964 (federal law), the Pennsylvania Human Relations Act, and Philadelphia’s Fair Practices Ordinance overlap extensively, with Philadelphia’s local ordinance applying to more employers and prohibiting a wider range of workplace discrimination. So, if your character works in Philadelphia, s/he may have more workplace-related rights than if s/he works in some other parts of the state.
Some issues that are typically covered by state law include: family law (marriage, divorce, child custody, paternity), contracts, real estate / property, etc.
Some issues that are typically covered by federal law include: immigration, intellectual property, bankruptcy, etc.
Criminal law involves a lot of overlap: the majority of criminal prosecutions (theft, assault, simple drug possession) occur under state law, but federal law reaches into those areas as well, typically through drug laws. It also reaches other unique areas like child pornography and organized crime, including drug gangs and terrorists.
If your novel deals with an area of law governed by state law, then where your novel takes place matters. For example, if a novel features a same-sex couple getting married and the state in which they live recognizes their union, then where they live is limited to the small (but growing) number of states that recognize same-sex marriage or civil unions.
After you’ve figured out what jurisdiction you’re in (federal vs. state, and then which state and locality), the next step is finding the right laws. There are several sources of law:
- statutes (from legislative branches of government),
- case law (courts interpreting statutes or common law), and
- regulations (from government agencies, like the Food and Drug Administration or the Environmental Protection Agency).
It would be difficult for most non-lawyers to interpret the finer points of these laws, but it’s possible to find articles or blog posts written by lawyers that explain it to you.
Where Can I Find Information About the Law? What if I Don’t Understand It?
No one is expecting a non-lawyer to do detailed case law research on Lexis or Westlaw (the databases lawyers use) or to parse cases and statutes the way a lawyer would (After all, you’re writing a novel, not a legal treatise!). Reading articles published in law journals (which are usually affiliated with law schools) and law blogs could help you understand how legal thinkers sum up the law in a certain area. There are also books about legal research that might be helpful, such as Legal Research: How to Find & Understand the Law (15th ed.) by Stephen Elias and the Editors of Nolo.
Here are a few resources anyone can use to research the law:
If you do not have access to Westlaw, Lexis, or Lexis Academic (which is often available to students and staff affiliated with educational institutions), Google Scholar is a wonderful search tool through which you can search for “legal documents,” including court decisions and law review articles. It’s available to everyone, and I know some lawyers who believe that it’s better than Lexis and Westlaw in terms of ranking the most relevant materials. Start with a phrase — for example, “three strikes laws constitutional,” for which the top result is the U.S. Supreme Court considering California’s three-strikes law, Ewing v. California, 538 U.S. 11 (2003) — and start looking around. The “how cited” feature is particularly interesting in seeing how one court describes another court’s decision.
NCSL and the DOJ provide reports and charts on a wide range of legal issues. To give you an idea of the range of topics NCSL covers (it’s a lot!): you can find a summary of state laws and/or guidebooks related to embryo and gamete disposition, breastfeeding, immigration (so you can see how states have dealt with a primarily federal issue), and juvenile justice.
- Law Libraries
Some law libraries allow the general public to use its resources on a per diem basis, including access to online reference materials like Lexis.
- Legal Organizations
There are many organizations that provide legal information aimed at non-lawyers, often for the purpose of self-representation (consumer education). By the way, if you are using the free legal resources prepared by an organization, you should consider donating to that organization in the future.
- Legal Blogs
Many lawyers author blogs aimed at other lawyers and non-lawyers. A lot of it is crap (SEO spam), but there are excellent blogs out there, too. As Max at Litigation and Trial describes in his post, Panda Blogging is the New Legal Treatise, Google has made some effort to separate the good legal content from the crap. His post gives you a sense of how to tell the crappy legal blogs from the better ones.
The American Bar Association (ABA) produces a list of what it believes are the Top 100 Law Blogs each year. Not all of these blogs are great, but the list is a starting place for any non-lawyer looking for legal information. If you find a blog you like, check out its blog roll to find other great options.
I’ve Done the Research. Did I Get the Law Right? How Can I Tell?
Anyone who practices law will tell you that there are rarely “right” answers to any legal question, but there are often answers that are more likely to be right than others. If your novel addresses legal issues directly, you should consider having a friend with some legal background serve as an early reader of your manuscript.
Good luck researching and writing your novel!
Photo credit: Misfortune of Knowing; Includes portions of five publications: Legal Research: How to Find & Understand the Law (15th ed. 2009) (on Kindle); Julie A. Allison & Lawrence S. Wrightsman, Rape: The Misunderstood Crime (1993); ABA Journal (Aug. 2012); Handling the Sex Offense Case (Pa. Bar Inst. 2012); David S. Olson, First Amendment Interests and Copyright Accommodations, 50 Boston College L. Rev. 1393 (2009).