Finding the Law: Administrative Law & Secondary Sources in PRINT

1. Finding the Law:Administrative Law & Secondary Sources in PRINT Ann Hemmens University of Washington Law Library Introduction to Environmental Law & Process (SMA 476) October 2, 2008

2. U.S. - A Highly Regulated Society • Banking (FDIC, OCC) • Environment (EPA) • Health (HCFA, FDA) • Labor Law (NLRB, OSHA) • Tax (IRS) • Securities (SEC)

3. 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

4. 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.

5. Organization of Federal & State Governments

6. 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.

7. 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

8. Examples of Legal Citations(inBluebookformat) • 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

9. 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).

10. How to use The 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/WhatWeDo/HelpStudents/Research-and-Writing-Aids.cfm)

11. 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?

12. 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

13. Agency 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

14. 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 …

15. Code of Federal Regulations (CFR) • Rules & regulations in force • Published annually • Index & finding tables

16. Federal Register (FR) • Daily • Proposed regs • New regs • Presidential documents • Executive orders • Proclamations

17. 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) How to Find Regulations?Using the CFR

18. INDEX to Federal Register Annotated Codes United States Code Annotated (USCA) United States Code Service (USCS) How to Find Regulations?Using the FR

19. How to Find Regulations?Using Secondary Sources • Treatises & Hornbooks • Legal Encyclopedias (AmJur & CJS) • Law Reviews • Annotations (ALR Fed) • Government Documents • Books (search law library catalog)

20. 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

21. 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

22. Sample Search for a Regulation & Updating a Regulation

23. Updating Regulations (4 steps):Any changes to 50 CFR § 17.95? • CFR volume (date on front cover of volume is October 1, 2007)[I need to update from that day to today] • List of Sections Affected (LSA) (Most recent monthly issue of LSA = July 2008)[includes changes from October 1, 2007– July 31, 2008 for Title 50 of CFR]

24. Updating Regulations: cont’d • Federal Register (pull last issue from prior month if the date is different than the LSA) • Check the “CFR PARTS AFFECTED DURING....” 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...” TABLE at END of volume. • If any changes have been made, you’ll find a reference to a FR page number you must review.

25. Looking for Resources ABOUT our law: Finding 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

26. Secondary Sources – cont’d • Any ALR “articles/annotations” about MMPA? • Use reference from USCS or ALR Index • Any law review articles on MMPA? • Use reference from USCS or index (LegalTrac), http://www.lib.washington.edu/subject/Law/ • Any Treatises or Hornbooks or books about MMPA in the Law Library?

27. Thanks for Listening • Need Help? Ask a Librarian! • Gallagher Law Library Reference Office (543-6794, lawrefst@u.washington.edu) • Brief tour the Law Library