Researching Obscure Questions

Interior of a law library, with tall columns and shelves of law books.

Legal research has changed dramatically over the past two decades. I think I was probably in the last few cohorts of law students who learned how to shepardize cases using the books and who made the digests, restatements, leading treatises, and other classic secondary sources the starting place for research. Today, the tendency is simply to dive right in to full-text boolean queries, and of course, with AI, that is changing, too. I plead guilty to going straight to full-text searching in a lot of cases. But there are still times when the old way is better, particularly when you’re facing an obscure question. Here is one I got the other day: can a court in state A. foreclose a mortgage on land in state B., or order the sale of the land after foreclosure?

If you had to answer that question and you wanted to do a full-text search, where would you start? Let me tell you, you will find it a difficult nut to crack. What you really need is a starting place, something to grasp onto and to point you in the right direction. My firm still has a small library, and I grabbed the Restatement (Second) of Conflict of Laws, which has a chapter on judicial jurisdiction. (Of course, you can find the Restatements in the major commercial databases, but why not try the book?) The table of contents for Chapter 3, on judicial jurisdiction, gave as one of the topics, “Judicial jurisdiction over persons to affect foreign acts or things.” That sounds promising. Section 55 under that heading, “Decree Affecting Thing in Another State,” reads:

A state has power to exercise judicial jurisdiction to order a person, who is subject to its judicial jurisdiction, to do, or not to do, an act in the state, although carrying out the decree may affect a thing in another state.

That’s a little abstract, but here is a bit of comment c:

A court will refuse to entertain a suit for the foreclosure of a mortgage and the sale of land if the state where the land is located requires the doing of official acts there as part of the foreclosure action. In states where such official acts are not required, a court may order a foreclosure sale under a power in the mortgage deed … if the mortgagor … is subject to the jurisdiction of the court.

That’s not the answer to my question, because the Restatement may or may not reflect the law in the relevant jurisdiction, and because even if it does, I need to understand whether the relevant jurisdiction allows for nonjudicial foreclosures. But it is a start. And even more helpful is the citation in the Reporter’s Note to Beach v. Youngblood, 247 N.W. 545 (Iowa 1933), as the source of the rule. Beach, in turn, discusses some of the early cases from various jurisdictions. Now I have a starting place in the cases.

When I compare the process I’ve just described with the process of boolean searching and then wading through a lot of cases that are not on point, or exhausting my ingenuity trying to devise more precise queries, it seems to me that the old way, at least sometimes, is faster, better, and cheaper. There is a lot of learning in the books!

Photo credit: Tyler Vigen (CC BY-SA)

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