The legal research method: An approach to enhance nursing science

The Legal Research Method: An Approach to Enhance Nursing Science DIANE K. KJERVIK, JD, RN* AND FLORIS E. KING, PHD, R N t

The nature of legal research as it relates to other research methods used in nursing is described, its history discussed, and its relevance to nursing science examined. The major concepts of person, health, environment, and nursing can be explicated by legal research and analysis. The phenomenological method is the one considered most likely to be enhanced by legal research. Finally, the following are discussed: the history of legal research, the definition of legal research, steps in the legal research process, legal research source materials, nursing concepts clarified by legal research, and the parallels between phenomenology and legal research. (Index words: Legal; Nursing; Research) J Prof Nurs 6:213-220, 1990. © 1990 by W.B. Saunders Company.

S NURSING SCIENCE becomes more sophisticated in identifying and categorizing nursing phenomena, it is apparent that numerous research methods are valuable in answering nursing research questions. The authors suggest that legal research is a method that can be drawn on by nursing researchers to answer policy questions in the nursing care domain, eg, the legal parameters of nursing practice standards, the nature of informed consent in the patient care context, and the elements of nursing employment relationships. The legal research method can make major contributions in nursing research methodology; for example, it can enhance nursing's phenomenological approach to the study of nursing's problems. This article will discuss the history and nature of legal research, its relationship to nursing science, and the connection between legal research and the phenomenological method.

*Associate Professorand Directorof Graduate Studies, University of MinnesotaSchoolof Nursing, Minneapolis, MN. tProfessor, University of Minnesota School of Nursing, Minneapolis, MN. Address correspondenceand reprint requests to Ms Kjervik: University of Minnesota School of Nursing, 6-101 Unit F, 308 Harvard St, Minneapolis, MN 55455. © 1990 by W.B. Saunders Company. 8755-7223/90/0604-001253.00/0

History of Legal Research The roots of legal research are found in 18thcentury England during the Age of Enlightenment, the time when critical reasoning was evolving as a way of moving the public away from irrational, suspicious beliefs and behaviors. 1 W i l l i a m B l a c k s t o n e ' s Commentaries2 developed a rational structure for legal thought. Law could be analyzed according to its structure and the corresponding propositions that were based on natural law. 1 Judicial case reports written in the English language date back to 1292 AD when "Year Books," notes of court actions, were used. 1 The Year Books, as well as similar later compilations, assisted in developing the doctrine of stare decisis (precedent) although they were not organized in a systematic manner. Because court opinions were available in written form, they could be referred to for the sake of maintaining continuity among decisions. These court reporters were used in the United States after the revolution and totalled only a few hundred volumes by 1850.1 The same common law tradition existed during the 19th century in Canada, which had its own version of Blackstone's principles, a federal criminal code, and the Quebec Civil Code. 3 When court reporter volumes became official rather than informal compilations, standardization in the form of a numbering system began, and when industrialization created increased amounts of litigation, commercial law publishers such as the West Company (St Paul, MN) standardized court opinions by classifying cases according to subject categories in a coherent fashion. 1 Obtaining reliability through accurate court opinions was a hallmark of the West approach. W i t h the overwhelming number of court decisions available to the lawyer, the organized, commercial approach was imperative to finding legal precedent, although precedent was sometimes not easy to find among contradictory court opinions. The Legal Realist movement of the 1920s and 1930s espoused the notion that law changed dramatically under varying social circumstances. 4 This viewpoint contrasted sharply with

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the formalistic, natural law approach, and was clearly associated with the burgeoning volumes of legal materials attempting to organize the law. Currently, court opinions have been computerized on systems such as Westlaw (West Publishing Co, St Paul, MN) and Lexis (Mead Data Central, Inc, Dayton, OH). These systems are the primary computer reference systems currently used for legal research. Berring criticizes these systems as destructive of the structure developed by West because the computer search looks only for words, not for a coherent structure of ideas. 1 However, many legal researchers rely on the use of these research tools to find court opinions, statutory authority, and regulatory decisions in the ever-expanding legal data base.

Nature of Legal Research The major purpose of the conventional legal research method is to locate legal authority. In this sense it is an archival method, oriented to finding certain written materials that are primary legal authority, eg, court opinions, legislative enactments, and administrative rules and regulations. Primary authority is distinguished from secondary authority in that secondary authority discusses and analyzes primary authority, the direct pronouncements from legal authorities. An example of a secondary authority is a textbook on a certain area of law such as contracts. Secondary authority plays a useful role in legal research, because it assists the researcher to find primary legal authority. Four types of legal research have been identified by the Consultative Group on Research and Education in Law in Canada. 3 The first type is the conventional method already discussed, which identifies, organizes, analyzes, and synthesizes primary legal authority. The authors found that 90 per cent of the legal research in Canada conducted by law professors fell into this category. Second, the Consultative Group identified the legal theory method, which is an explanatory and evaluative approach to understanding legal rules. This method requires a critical, intellectual distance from the legal rules and a questioning of how judges or legislators should decide legal questions. The third type of legal research found by the Consultative Group is fundamental research, which seeks to understand law as a social phenomenon examining historical, linguistic, political, or philosophical implications of law. This is considered research "on" law rather than research "in" law extant in the first two types of legal research. An example of this type of research is an empirical investigation of the

effect of informed consent law on the nurse-patient relationship. Very few Canadian legal scholars were found to conduct this type of research. The final form of legal research is law reform research, another research "on" law designed to bring about change in legal imperatives. According to the Consultative Group, this method is usually instigated by consumer demand rather than scholarly interest and is narrowly drawn to answer specific questions. The degree of this type of research being conducted in Canada was not discussed by the Consultative Group; however, one can surmise that very little legal research falls into this category, since so much attention is given to the conventional method. No similar analysis of the types of legal research in the United States was found, and it is clear that comparable evaluation would be helpful in understanding the scope of legal research in this country. However, in the authors' experience, most legal research is of the conventional type. The authors present the Canadian research to stimulate the study of legal research in the United States.

Steps in the Conventional Legal Research Process Conventional legal research is a systemized process used to discover the law relating to a specific question. Five steps of the process are identified by Jacobstein and Mersky. 5 The first step in the legal research process is to identify the legally important facts. This requires an ability to see what is legally relevant and then describe the associated facts of the given problem. Failure to find the pertinent facts may result in the researcher not finding correct law, because the search is not sufficiently broad. Next, the legal issues must beframed in such a way as to meaningfully guide the research. Again, breadth is important if one is searching for the answer to a legal question, because without a wide statement of the issues, law that is determinative may be overlooked. It is useful to identify subissues that are related to the broad issue, and find the answer to each subissue by exhausting all legal authority. The third step in the legal research process is to identify the relevant sources of law. This involves the preparation of a list of sources to be used and the order in which they are to be examined. Sources can be categorized into (1) court opinions; (2) statutes; (3) constitutions, (4) administrative regulations (a general rule promulgated by an agency); (5) administrative decisions (resolution of a specific controversy by an agency); (6) charters (law of a municipality or other

THE LEGAL RESEARCH METHOD

local governmental body authorizing it to perform its functions); (7) ordinances (law passed by a local governmental body); (8) rules of court (procedural rules used by a given court); (9) executive orders (law issued by the chief executive according to statutory authority); and (10) treaties (agreements between two or more countries). 6 The fourth step in the research process is finding answers to the research question. The issues are examined individually according to the order set out in step three. Each case should be "Shepardized," ie, examined manually for subsequent court action in the Shepard's Citations 7 volumes or by computer in the Shepard's file in either the Lexis or Westlaw program. All authorities mentioned in the first source should be read in order to pursue an answer thoroughly. The final step is to communicate the answer to the research question. Notes prepared in response to previous steps are now organized and presented either orally or in writing by stating the issues that have been researched and the answers that were found, identifying the most legally significant facts, and ending with a conclusion. A catalog of legal research materials compiled by Statsky 6 can be found in Table 1.

Relation of Legal Research to Nursing Science Any discussion of legal research in the nursing context must consider the connection between legal research and major nursing concepts and theories. Four nursing concepts that are commonly referred to are the person, nursing, the environment, and health. 8'9'1° Legal phenomena are part of the environment in which the provision of health care occurs, and a prestigious nursing group has discussed the need for clarification of legal as well as other elements within the environment, ll When law is analyzed in terms of where it exists, the analysis is "on" law, to use the Canadian Consultative Group's characterization. 3 The researcher stands apart from the nursepatient-environment interaction and identifies where legal phenomena fit. The researcher can also examine the analysis "in" law as it relates to the environment, the person, nursing, and the concept of health. In this approach, the investigator would research and analyze pertinent legal argument and parameters relating to each of the nursing concepts. For instance, Murphy's discussion of the nurse's right to be free from verbal or physical abuse is an example of a legal analysis concerning the concept of nursing. 12 Cohn's analysis of living will legislation explicates the concept of health in terms of

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decision making by the patient before the time of incompetency. 13 Kjervik and Grove's 14 focus on consent as it relates to unequal power between parties to an agreement, ie, patient and health care provider, synthesizes a new role for the patient and provider whereby power inequities between them can be reduced leading to a more meaningful consent to treatment. Safety as one aspect of the environment is analyzed by Fiesta 15 in relation to an overall examination of risk management in hospitals. Categories of legal research content as these may relate to major nursing concepts appear in Table 2. Figure 1 depicts the relationship between legal research and nursing science. The listing in Table 2 is intended to be a suggested representation of the relationship rather than a definitive, exhaustive list.

Phenomenology and Legal Research Science today is conceived as being consensual, informed opinion about the natural world including human behavior and social action 16 rather than as a body of codified knowledge. 17 Nursing science, as a domain of knowledge, systematically studies individual and group adaptations to health, illness, disability, and catastrophic changes in relation to environmental influences and therapeutic actions. 8 The specific phenomenon under study, therefore, is the human experience of the individual as it is lived in all its complexity. The very nature of the phenomena of interest and questions raised within nursing science require familiarity with several disciplinary fields including their theories, research traditions, and philosophical orientations to scientific inquiry. Human experience does not occur in a laboratory and therefore it is often difficult to objectify and formally test propositions or hypotheses in controlled experimentation. Phenomenology provides the opportunity to study the lived

t•'-•.•• i

l Figure 1.

Envrionment

' Legal research and nursing science.

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TABLE 1,

A Catalog of Legal Research Materials

Sets of Materials That Contain the Full Text of This

Kind of Law

Kind of Law

Sets of Materials That Can Be Sets of Materials That Can Be Used to Help Explain This Used to Locate This Kind Kind of Law of Law

Sets of Materials That Can Be Used to Help Determine the Current Validity of This Kind of Law

(a) Opinions

Reports Reporters ALR, ALR2d, ALR3d, ALR4th, ALR Fed Legal newspapers Loose-leaf services Slip opinion Advance sheets WESTLAW, LEXlS

Legal periodicals Digests Annotations in ALR, ALR2d, Encyclopedias ALR3D, ALR4th, ALR Fed Treatises Annotations in ALR, ALR2d, Shepard's ALR3d, ALR4th, ALR Fed Legal periodicals Loose-leaf services Encyclopedias Treatises Loose-leaf services Words and Phrases

Shepard's

(b) Statutes

Statutory Code Statutes Statutes at Large Session Laws Laws Compilations Consolidated Laws Slip Law Acts, Acts & Resolves WESTLAW, LEXIS

Index volumes of statutory code Loose-leaf services Footnote references in encyclopedias, legal periodicals, etc.

Legal periodicals Encyclopedias Treatises Annotations in ALR, ALR2d, ALR3d, ALR4th, ALR Fed Loose-leaf services

Shepard's

(c) Constitutions

Statutory Code Separate volumes containing the constitution

Index volumes of statutory code Loose-leaf services Footnote references in encyclopedias, legal periodicals, etc.

Legal periodicals Encyclopedias Treatises Annotations in ALR, ALR2d, ALR3d, ALR4th, ALR Fed Loose-leaf services

Shepard's

(d) Administrative Regulations

Administrative Codes Separate volumes or pamphlets containing the regulations of certain agencies Loose-leaf services

Index volumes of the administrative code Loose-leaf services Footnote references in encyclopedias, legal periodicals, etc.

Legal periodicals Treatises Annotations in ALR, ALR2d, ALR3d, ALR4th, ALR Fed Loose-leaf services

Shepard's (for some agencies only) Ust of Sections affected

(e) Administrative Decisions

Separate volumes of decisions of certain agencies Loose-leaf services

Loose-leaf services Index or digest volumes to the decisions Footnote references in other materials

Legal periodicals Treatises Annotations in ALR, ALR2d, ALR3d, ALR4th, ALR Fed Loose-leaf services

Shepard's (for some agencies only)

(f) Charters

Separate volumes containing the charter Municipal Code State session laws Official journal Legal newspaper

Index volumes to the Legal periodicals charter or municipal code Treatises Footnote references in Annotations in ALR, ALR2d, other materials ALR3d, ALR4th, ALR Fed

Shepard's

(g) Ordinances

Municipal code Official journal Legal newspaper

Index volumes of municipal code Footnote references in other materials

Legal periodicals Treatises Annotations in ALR, ALR2d, ALR3d, ALR4th, ALR Fed

Shepard's

(h) Rules of Court (court rules)

Separate rules volumes Statutory code Practice manuals

Index to separate rules volumes Index to statutory code Index to practice manuals Footnote references in other materials

Practice manuals Treatises Annotations in ALR, ALR2d, ALR3d, ALR4th, ALR Fed Encyclopedias Loose-leaf services

Shepard's

(Continued on following page)

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THE LEGALRESEARCHMETHOD TABLE 1.

A Catalog of Legal Research Materials (Cont'd)

Kind of Law

Sets of MaterialsThat Contain the Full Text of This Kind of Law

Sets of MaterialsThat Can Be Sets of Materials That Can Be Used to Locate This Kind Used to Help Explain This Kind of Law of Law

Sets of Materials That Can Be Used to Help Determine the Current Validity of This Kind of Law

(i) Executive Orders

Federal Register Code of Federal Regulations U.S. Code Congressional and Administrative News U.S.C./U.S.C.A./U.S.C.S. (for some orders only)

Index volumes to the sets of books listed in the second column Footnote references in other materials

Legal periodicals Treatises Annotations in ALR, ALR2d, ALR3d, ALR4th, ALR Fed

Shepard's Code of Federal Regulation Citations

(j) Treaties

Statutes at Large (up to 1949) United States Treaties and Other International Agreements Department of State Bulletin International Legal Materials United Nations Treaty Series

Index within the volumes listed in second column World Treaty Index Current Treaty Index Footnote references in other materials

Legal periodicals Treatises Annotations in ALR, ALR2d, ALR3d, ALR4th, ALR Fed

Shepard's

(k) Opinions of the Attorney General

Separate volumes Digests containing these opinions Index in separate volumes of the opinions Footnote reference in other materials

Reprinted by permission from Legal Research and Writing, Third Edition by William P. Statsky copyright © 1986 by West Publishing Company. All rights reserved.

experience of the individual in all the complexity of that lived experience. The purpose of studying the human experience as it is lived is to understand the structure and meaning of human experience so that interventions may be employed to benefit humankind. Phenomenology is the study of human experience and focuses on the process of understanding human behavior 18 and human experience. 19 The goal of phenomenological research is to understand human experience from the individual's perspective. The beginnings of the phenomenological method go back to the 19th century. It is difficult to trace the methodological evolvement because it is closely linked with discussions on the phenomenological philosophy and theory development. Cohen 2° presents a comprehensive review of the phenomenological movement that can be traced back to Immanuel Kant in 1786. The method was initially developed by Edmund Husserl (1859-1938) who described it as a method that allows us to contact phenomena as we live and experience them. 19 It is only in the last two decades that articles in sociology and psychology have emphasized phenomenological methods. And only in the last decade has nursing literature demonstrated

such explorations. The method has been embraced by nurse scientists before this time, but the emphasis on the experimental method as the only legitimate method--fraught with the many debates since--has delayed phenomenology being embraced as acceptable. The phenomenological approach is a form of qualitative research in that it is descriptive and inductive in nature. In addition to interviews and participant observation, data obtained for qualitative analysis can include documents. 21 Official records and public documents inform the researcher about the people who write and maintain them so that the perspectives, concerns, activities, and assumptions of these persons can be detected, z2 Legal research seeks to describe the phenomenon of person to person (civil law) or person to state (criminal law) conflict including description and analysis of the writer of the legal opinion whether it be a judge, a legislature, or an attorney general. For instance, Westlaw, a major computer-assisted legal research tool, alIows a search of decisions by a given judge or an attorney general. 23 The eight basic assumptions of the phenomenological research method (Fig 2) are also true for legal research. They include:

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TABLE 2.

Nursing Concept

Person

Nursing

Major Nursing Concepts and Corresponding Legal Research Content Legal Content Category

Identity of recipient as allowed in nurse practice acts, court opinions, and administrative decisions (healthy or ill, inpatient or outpatient, private clients) Role of the patient (consent to treatment, refusal of treatment, Patients' Bills of Rights) Nursing identity as established by Nurse Practice Acts, professional education, and certification mechanisms recognized in law Role of the nurse (diagnosis, drug prescription, discharge and admitting privileges to hospitals, standards of care, nurses' rights)

Nurse-client relationship

Nature of the treatment contract, abandonment, privileged communication

Health

Resource allocation based on cost-benefit analysis, legislative funding, standards of care for primary prevention, and client choice

Environment

Context of practice (health and safety requirements, hospital or outpatient services policies, private practice mandates) Interaction with third parties (other health care professionals, nonprofessional staff, police, the press, and legal forums)

. Fidelity to the phenomena as it is lived. 24 The phenomenological interpretation of living is composed of both experience and behavior. Likewise, legal research analyzes real experiences and behaviors of persons in conflict with each other or with the state. . The primacy of life-world. 24 One's perceptions and actions are seen as meaningful expressions of being-in-the-world. 18 Legal research attends to perceptions and actions of litigants, judges, attorneys arguing both facts and law of a given case, and witnesses. . The descriptive approach. The phenomenological approach is descriptive. Legal research describes fact situations in great detail comparing facts across cases for the purpose of analysis and synthesis. . Phenomenological research presents the situation from the viewpoint of the subject, 25 whereas the viewpoints of all relevant persons are scrutinized carefully in legal research.

LEGAL RESEARCH

ASSUMPTIONS

Real experiences and 1. Fidelity to the behaviors isphen°menalived,as it Perceptions and actions of litigants, Judges, attorneys, witnesses

2. Primacy of life-world

Describe fact situations

3. Descriptive approach

PHENOMENOLOGICAL RESEARCH

Experiences and behav ors Perceptions and actions are meaningful expressions of ~be ng- n-wor d Description

Viewpoints of all 4. Viewpo[nt Of relevant persons are subjects scrutinized

Situation is from viewpoint of the subject

aminedReal disputeSanddecidedare ex- 5. Lived situation

experBaSiuni c tenceiSthe lived

Times and dates of human events are crucial to analysis

6. Biographical emphasis

All human phenomena are temporal, historical, persona

Objectivityessentiis al

7. Presuppositlonlessdescription Bracketing is used

The goal-phenomena 8. Search for are studied for meaning depth and breadth I and for patterns and j precedents: meaning

The goal-interrogate the phenomenon tse f: mean ng

Figure 2.

The eight basic assumptions related to phenomenological and legal research with a foundation in nursing science concepts. 5. The lived situation is the basic unit of phenomenological research. Likewise, legal research examines real conflicts and societal problems. In fact, courts will not accept cases for hearing unless there is a real "case or controversy, "26 so the researcher will only find court cases where a real dispute has been examined and decided. Similarly, legislatures and executive branch officials only examine and decide issues where real policy issues exist.

6. A biographical emphasis. All human phenomena are temporal, historical, and personal. 24 In legal research, times and dates of the occurrences of human events are crucial to the analysis. 7, The aim is to provide presuppositionless description. This is accomplished by explicitly setting forth the investigator's presuppositions and setting these aside (bracketing). The objectivity of the legal researcher is necessary to

THE LEGAL RESEARCH METHOD

219

obtaining the broadest view of all facts, circumstances, and legal decisions.

8. A search for meaning. The method is to directly interrogate the phenomenon itself in the search for meaning. 25 Legal researchers examine legal phenomena in great depth (within cases) and breadth (among cases) for patterns and precedents. In order to demonstrate and understand the experiences of the persons involved, phenomenologists use three general strategies: setting aside presuppositions; imagining various meanings to the experience; and interpreting the meanings by categorizing them as they emerge.t8 The same strategies are used by the legal researcher. There are specific, step-by-step phenomenological methodologies developed by Spiegelberg, 27 Van Kaam, 28 Colaizzi, 29 and Giorgi et al. 24 Each of these differs slightly, but all incorporate the basic assumptions and the three general strategies. Giorgi's method is the one frequently used in nursing research and primarily emphasizes the data analysis. The data analysis described by Giorgi has five steps: reading the entire description of the experience to get the sense of the whole; rereading the entire description more slowly, identifying units in the experience called constituents; eliminating redundancies in the units by clarifying and elaborating, reflecting on given constituents in the concrete language of the subject and transforming that concrete language into concepts of nursing science; and integrating and synthesizing the insights into a descriptive structure of the meaning of that experience and then going to other researchers for

critique. Carrying out legal research involves a similar intellectual process: The discussion by Woods and Catanzaro 2~ of latent content analysis also describes the legal research approach to dealing with data, although it does not mention legal research specifically. Each passage of textual material is examined for its meaning. Segments of data are categorized and compared. Each category's dimensions, conditions, and consequences are noted. Woods and Catanzaro also mention use of memos about methods used, observations made, and theories derived by the researcher. This form of analysis is commonly used by legal researchers in their process of organizing their findings for report to others in the form of legal memoranda or published papers.

Conclusion Legal research is an approach to finding primary legal authority. Its usefulness to nursing science lies in its enhancement of the phenomenological approach to analyzing and synthesizing the nursing concepts of health, the person, the environment, and nursing. Conventional legal research is archival in nature seeking to find written legal authorities in case law, legislative enactments, and executive branch pronouncements. It is also qualitative research in that it is inductive and descriptive. The challenge of the future will be the contributions of legal research to the new paradigm research approach: the dialogue between participant-law-nurse. 3° Understanding the element of subjectivity in legal and nursing decision making processes will be an important factor in achieving a holistic view of human interaction.

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220 12. Murphy E: Working in a stressful environment does not supercede the right to be free from verbal or physical abuse. AORN J 47:579, 582-584, 1988 13. Cohn SD: The living will from the nurse's perspective. Law Med Health Care 11:121-124, 136, 1983 14. Kjervik DK, Grove S: A legal model of consent in unequal power relationships. J ProfNurs 4:192-204, 1988 15. Fiesta J: The Law & Liability: A Guide for Nurses (ed 2). New York, NY, Wiley, 1988 16. Gortner SR: The history and philosophy of nursing science and research. Adv Nurs Sci 5:1-8, 1983 17. Brooks H: Knowledge and action: The dilemma of science policy in the 70's. Daedalus 102:125-143, 1973 18. Keen E: A Primer in Phenomenological Psychology. Ft Worth, TX, Holt Rinehart, 1975 19. Valle R, King M (eds): Existential-Phenomenological Alternatives for Psychology. New York, NY, Oxford University Press, 1978, pp 6-17 20. Cohen MZ: A historical overview of the phenomenologic movement. Image J Nurs Sch 19:31-34, 1987 21. Woods NF, Catanzaro M: Nursing Research: Theory and Practice. St Louis, MO, Mosby, 1988, pp 135, 437-456 22. Taylor S, Bogdan R: Introduction to Qualitative

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Research Methods (ed 2). New York, NY, Wiley, 1984, pp 106-122 23. Westlaw (ed 2). St Paul, MN, West Publishing, 1985 24. Giorgi A, Knowles R, Smith D: Duquesne Studies in Phenomenological Psychology, vol 3. Pittsburgh, Duquesne University Press, 1979 25. Giorgi A, Fischer C, Murray E: Duquesne Studies in Phenomenological Psychology, vol 2. Pittsburgh, Duquesne University Press, 1975 26. Nowak JE, Rotunda RD, Young JN: Constitutional Law (ed 3). St Paul, MN, West Publishing, 1986 27. Spiegelberg H: The Phenomenological Movement, vol 1. Dordrecht, The Netherlands, Nijhoff, 1960 28. Van Kaam A: Phenomenological analysis: Exemplified by~ study of the experience of being really understood. Indiv Psychol 15:66-72, 1959 29. Colaizzi P: Psychological research as the phenomenologist views it. In Valle R, King M eds: Existential Phenomenological Alternatives for Psychology. New York, NY, Oxford University Press, 1978 30. MorseJM (ed): Qualitative nursing research: A contemporary dialogue. Rockville, MD, Aspen, 1989