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Finding the Law: Administrative Law & Secondary Sources in PRINT. Ann Hemmens University 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)

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Finding the Law:Administrative Law & Secondary Sources in PRINT

Ann Hemmens

University of Washington Law Library

Introduction to Environmental Law & Process

(SMA 476)

October 4, 2007


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U.S. - A Highly Regulated Society

  • Banking (FDIC, OCC)

  • Environment (EPA)

  • Health (HCFA, FDA)

  • Labor Law (NLRB, OSHA)

  • Tax (IRS)

  • Securities (SEC)


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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


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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.


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Organization of Federal & State Governments


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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.


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Examples of Legal Citations(inBluebookformat)

  • 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


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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)


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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).


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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?


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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.).

    • Notice of proposed rule

    • Comment period

    • Final rule & response to comments


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Authorization by Statute

The Secretary shall by regulation . . . Determine

whether any species is an endangered species or

a threatened species because of . . .

  • the present or threatened destruction, modification, or curtailment of its habitat or range;

  • overutilization for commercial, recreational, scientific, or educational purposes;

  • 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


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Background of Rule? – Congressional Findings

16 U.S.C. § 1531: Congressional findings and declarations of purposes and policy

The 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 …


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Code of Federal Regulations (CFR)

  • Rules & regulations in force

  • Published annually

  • Index & finding tables


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Federal Register (FR)

  • Daily

  • Proposed regs

  • New regs

  • Presidential documents

    • Executive orders

    • Proclamations


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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?


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How to Find Regulations?

Secondary Sources

  • Treatises & Hornbooks

  • Legal Encyclopedias (AmJur & CJS)

  • Law Reviews

  • Annotations (ALR Fed)

  • Government Documents

  • Books (search law library catalog)


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Updating Regulations

CFR

Date on cover

List of Sections

Affected (LSA)

Most recent monthly issue

Federal Register

Last day of prior month

Federal Register

Each daily issue from

end of last month to today


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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


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Sample Search for a Regulation & Updating a Regulation


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

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

  • 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]


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Updating Regulations: cont’d

  • Federal Register (pull last issue from prior month)

    • Check the “CFR Parts Affected During September” Table at end of volume.

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

  • Federal Register (most recent date of current month)

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

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


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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


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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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Thanks for Listening

  • Need Help?

    • Gallagher Law Library Reference Office (543-6794, lawrefst@u.washington.edu)

  • Tour the Library


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