Finding the Law:Administrative Law &

Secondary Sources in PRINT

Ann HemmensUniversity of Washington Law Library

Introduction to Environmental Law & Process(SMA 476)

October 4, 2007

U.S. - A Highly Regulated Society

Banking (FDIC, OCC) Environment (EPA) Health (HCFA, FDA) Labor Law (NLRB, OSHA) Tax (IRS) Securities (SEC)

U.S. Legal System Federalism

two levels of government (federal and state)

Separation of powers ensure that none of 3 branches of

government usurps powers of other branches

Primary & Secondary Authority Primary

Statement of "the law" from bodies with law-making authority

Secondary Explain, interpret, and help you locate

the primary law Includes: Treatises, Hornbooks, law

review articles, legal encyclopedias, Restatements, Nutshells etc.

Organization of Federal & State Governments

Constitution

Legislative Judicial Executive

Statutes

Stat., USCRCW

Cases

US, Fed 3dP3d, Wash.

RegulationsAdministrative Decisions

FR, CFRWAC

How do Sources of Law Interact?

Court interprets a statute An earlier court decision is overruled

by same court Statute held unconstitutional by a

court Legislature writes statute in

response to a case Agency proposed rules in response

to statute.

Examples of Legal Citations(in Bluebook format)

Federal Statute Endangered Species Act

Pub.L.No. 93-205 87 Stat. 884 link 16 U.S.C. § 1531 et seq. (2000)

16 U.S.C. § 1538 Prohibited Acts link

Federal Regulations Importation, Transportation and Exportation of

Wildlife, 50 C.F.R. Part 14 (2004) link 50 C.F.R. § 14.17 (2004): “Personally Owned Pet

Birds” link

Legal Citation - Bluebook The Bluebook: A Uniform System of Citation (KF245 .U5 2005

18th ed. in Reference Area)

Introduction to Basic Legal Citation (LII 2006 ed.), by Peter W. Martin (http://www.law.cornell.edu/citation/)

Bluebook entry in Wikipedia (http://en.wikipedia.org/wiki/Bluebook)

User’s Guide to the Bluebook, by Alan Dworsky (KF245 .D853 2006 Ref Area)

Cite Right, by Charles Lipson (PN171.F56 L5 2006 Ref Area) Doing Honest Work in College, by Charles Lipson (PN171 .F56 L56

2004 Ref Area) Citing & Typing the Law, by C.Edward Good (KF245 .G66 1997 Ref

Area).

Legal Writing and Research: A Selected Annotated Bibliography (http://library.lawschool.cornell.edu/guides/legwritres/default.html)

More Legal Citations Federal Cases

Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). link

Only need U.S. cite (ignore parallel cites) San Carlos Apache Tribe v. U.S., 272

F.Supp.2d 860 (D.Ariz. 2003).

In Legal Research, You Need to Know:

What type of law governs this issue? statutes? regulations? cases?

Which jurisdiction? federal or state or both?

Have you updated your research?

Administrative Law What is it? Rules, regulations, and decisions

created by administrative agencies (at federal & state level).

Which agency covers a specific subject area? U.S. Government Manual (http://

www.gpoaccess.gov/gmanual/index.html)

Procedural Standards? YES! See, Administrative Procedure Act (APA) (5 USC §551 et seq.).

1) Notice of proposed rule2) Comment period3) Final rule & response to comments

Authorization by StatuteThe Secretary shall by regulation . . . Determinewhether any species is an endangered species or a threatened species because of . . . (A) the present or threatened destruction,

modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational,

scientific, or educational purposes; (C) disease or predation . . . . ……(b)(3)(c)(iii) The Secretary shall implement a

system to monitor effectively the status of all species with respect to which a finding is made under …

16 USC § 1533

Background of Rule? – Congressional Findings16 U.S.C. § 1531: Congressional findings

and declarations of purposes and policyThe Congress finds and declares that – (a)(1) Various species of fish, wildlife, and plants

in the U.S. have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation…

…(b) The purposes of this chapter are to provide a

means whereby the ecosystems upon which endangered species … may be conserved …

Code of Federal Regulations (CFR)

Rules & regulations in force

Published annually

Index & finding tables

Federal Register (FR) Daily Proposed regs New regs Presidential

documents Executive

orders Proclamations

How to Find Regulations?

INDEX to Code of Federal Regulations At end of set of CFR volumes “CFR Index” volume of the US Code Service

(USCS) “West's CFR: General Index” (KF70 A34)

“Parallel Table of Authorities & Rules” found in CFR Index volume also called “statute-to-regulation table” Example: 16 USC 1533 (Endangered Species Act)

– to - 50 CFR Part 17 (regulations implementing Act)

INDEX to Federal Register Annotated Codes

United States Code Annotated (USCA) United States Code Service (USCS)

How to Find Regulations?

Secondary Sources Treatises & Hornbooks Legal Encyclopedias (AmJur & CJS) Law Reviews Annotations (ALR Fed) Government Documents Books (search law library catalog)

Updating Regulations

CFRDate on cover

List of SectionsAffected (LSA)

Most recent monthly issue

Federal RegisterLast day of prior month

Federal RegisterEach daily issue from

end of last month to today

Administrative Decisions Where are they

published? For list of publications

see, Cohen, Berring & Olson, How to Find the Law, Appendix D (KF240 .H64 1989 at Reference Office)

websites

Sample Search for a Regulation & Updating a

Regulation

Updating Regulations (4 steps):Any changes to 21 CFR § 172?

1) CFR volume (date on front cover of volume is April 1, 2007)[I need to update from Oct.1, 2005 to today]

2) List of Sections Affected (LSA) (Most recent monthly issue of LSA = July 2007)[includes changes from April 1 – July 31, 2007 for Title 21 of CFR]

Updating Regulations: cont’d3) Federal Register (pull last issue from

prior month)1) Check the “

CFR Parts Affected During September” Table at end of volume.

2) If any changes have been made, you’ll find a reference to a FR page number you must review.

4) Federal Register (most recent date of current month)

1) Check the “CFR Parts Affected During October” Table at end of volume.

2) If any changes have been made, you’ll find a reference to a FR page number you must review.

Secondary Sources The law we are researching: Marine

Mammal Protection Act (MMPA) What is the US Code citation for it?

Use Popular Names Table What regulations (CFR) are related to

it? USCS or USCA

Any encyclopedia entries explaining it? AmJur or CJS

Secondary Sources – cont’d

ALR “article” about MMPA? Use reference from USCS or ALR Index

Law review article on MMPA? Use reference from USCS or index

(LegalTrac), http://www.lib.washington.edu/subject/Law/

Treatise or Hornbook or Nutshell or book from the Law Library

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