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Administrative Law Orientation: The Law

PADP 6490 taught by Prof. J. Michael Martinez

The Law

What is "The Law"?

Law, simply put, is the formal pronouncement of the rules which guide our actions. Legislatures, state and federal, make laws. So do local governments. Executive branches and agencies implement laws through regulations. Courts enforce and interpret laws and regulations and settle disputes through their decisions.

The output of these law making bodies goes into print and online resources. The material produced by these groups becomes much of what is in law libraries and what lawyers consult during their legal research. The collection of materials are referred to by specific terminology:
  • Legislation (statutes, laws)
    • session laws, statutory codes
  • Regulations
    • administrative codes, registers
  • Court decisions or opinions
    • report, reporters
Outline of the U.S. Legal System, Bureau of International Information Programs, United States Department of State (PDF)

So how does someone find the relevant law? How do you identify a specific documents in these reporters and codes? First, keep in mind there is a great difference between retrieving a known document and researching or trying to find documents that help you answer a legal question. If you have a citation to a specific legal document like a statue or a court decision it is fairly easy to retrieve that specific document. [See the Citations tab.] Conducting actual legal research is much more complex. The legal publishing world has created a number of research aids:
  • Indexes are common to most fields. In law they are generally used to locate journal articles.
  • Legal encyclopedias function much the same way as a general encyclopedia.
  • Digests are a unique legal research tool that acts like a cumulative index to all court decisions.
  • Looseleaf services provide analysis, practice advice, and current updates to rapidly changing fields like tax and environmental law.
  • Treatises provide a scholarly, in-depth treatment of a topic and they can be very in-depth. For instance one set covering just federal civil procedure runs to 26 volumes.

Research Steps

I. Start broadly - should be able to get a statute and cases
    A, Encyclopedia
        1. American Jurisprudence (also in LexisNexis Academic > US Legal > Legal Reference )
        2. Think about various terms and phrases relevant to the subject, for example:

  • Employment - “public employee” "government employee" “free speech" "limitation on speech"
  • Environment - "clean water" "air pollution"

    B. American Law Reports (ALR)
    C. Current awareness publications
        1. Titles in law library - print titles are indicated by a call number; all of the titles are
online through LexisNexis Academic & Hein Online

  • Administrative Law Review - KF5401.A15 A24, Balcony
  • Journal of the National Association of Administrative Law Judiciary - KF5421.A15 J68, Balcony
  • Texas Tech Administrative Law Journal
  • Subject specific publications

    D. Treatises/Books - somebody has written on the topic
        1. GAVEL - online catalog of the Law Library
            a. expand search with subject headings
            b. Look for titles that are updated or recent editions

  • Administrative Law Treatise - KF5402 .D324 2010, Balcony
    • which is updated annually, the most recent update arrived in November 2011
  • West's Federal Administrative Practice - KF5407 .W48 2002, Balcony
    • Law Library stopped updating in 2010 but might still be useful,
  • Understanding Administrative Law - KF5402 .F68 2008, Balcony

        2. GIL - online catalog of the Main Library
    E. Periodical Indexes
        1. Print (browse for topics) - Index to Legal Periodicals, Current Legal Index
        2. Online
            a. Index to Legal Periodicals and Books & Legaltrac are the two broad general indexes; search both as there is unique content in each
            b. Retrieve the articles in Hein Online, LexisNexis Academic, and/or GALILEO (each of these services also have keyword searching)

II. Begin refining
    A. With a statute use the annotated codes to get relevant court decisions, regulations, and other references
    B. Retrieve the cases, statutes, and regulations cited in law review articles
    C. Cases can be used to find other similar cases or newer cases. Ask the reference librarian to help you Shepardize or use a digest with the topic and key numbers (they’ll know what that means).

III. Talk to a reference librarian, really, that's why we're here.

IV. Important Research Concepts
    A. Currency - how is the publication updated and what is the date of the last update
    B. Authoritative value - is the publication official
    C. "Shepardize" - a verb meaning to check the status of an opinion, statute, or regulation. Also to find additional opinions, statutes, or regulations.


V. Legal Search Engines
    A. Cornell Legal Research Engine
    B. Findlaw Lawcrawler
    C. Lexis Web

Legal Concepts

Precedent

Precedent is based on stare decisis, which means “to stand on what has been decided". The principle developed in English common law and establishes that the decision of a court not only settles a dispute between the parties involved but also sets a precedent or model to be followed in future, similar cases.

A decision is binding authority on the court that issued the decision and on lower courts in the same jurisdiction for the disposition of factually similar controversies. In a hierarchical system like our state and federal court systems, the decision of a trial court can bind future decisions of that trial court, but the decisions do not bind other trial courts or appellate courts. Appellate courts can bind themselves and lower courts over which they have appellate jurisdiction, but appellate courts cannot bind each other by their decisions.

Jurisdiction

Another important principle in our legal system is that of jurisdiction.

Levels

  • Federal
  • State
  • Local
  • Administrative

Jurisdiction is power, the power or authority of the court to decide a matter in controversy. The authority to compel witnesses to testify or command people to turn over documents or property, or to jail them for contempt. Jurisdiction is established in constitutions and by statute and is usually done geographically or by subject.

Types

  • Concurrent
  • Exclusive

There are some matters over which a state or federal court has exclusive jurisdiction and some matters over which a state court has concurrent jurisdiction with the federal courts. Federal courts can, in some instances, decide questions of state law; state courts can, in some instances, decide questions of federal law. Sometimes it might be difficult to determine which matters are questions of federal, or state law, or both.

Court Structure

The final concept is the court structure. In general, there are trial courts and appellate courts.

Trial Courts

  • Where the trial is held (courts of first instance or impression).
  • Parties appear, witnesses testify, and the evidence is presented.
  • Basic function of a trial court to determine questions of fact in dispute and then applies the applicable rules of law.

Appellate Courts

  • The losing party generally has a right of appeal to an appellate court.
  • Each state has a final court of appeals or court of last resort. Thirty-eight states also have intermediate courts of appeals.
  • The appellate court decides questions of law and its decision in each case is based on the trial record from below, e.g., pre-trial proceedings and trial transcript. Appellate courts do not receive new testimony or decide questions of fact, and in most jurisdictions only the appellate courts issue written opinions.

When a case is appealed to an appellate court, both parties submit written briefs that contain a summary of the facts and arguments on the points of law involved, and the court may hear oral arguments by the attorneys. The court then issues an opinion which states the legal basis for the decision.

If the case is decided by an intermediate appellate court, the losing party may be able to appeal one more time. This second appeal is usually at the discretion of the higher court.

U.S. Courts

State courts structure charts

Primary Authority - Cases

Types of Authority

Legal authority is any published source of law that presents the legal rules, legal doctrine, or legal reasoning that may be used as the basis for legal decisions. Authority refers to the types of legal information and to the weight or degree of persuasiveness of the legal information.

When used to describe types of legal information, there are two categories, primary or secondary. Primary authorities are authorized statements of the law by governmental institutions. These include written opinions of courts (case law); constitutions; legislation (statutes and codes); rules of court; and the rules, regulations and opinions of administrative agencies.

Secondary authorities are statements about the law and explain, interpret, develop, locate, or update primary authorities. For example, treatises, law review articles, American Law Reports annotations, Restatements of the Law, and looseleaf services are types of secondary authorities.

J. Myron Jacobstein, Roy M. Mersky, Donald J. Dunn, Fundamentals of Legal Research, 6th ed. (Foundation Press, 1994).

Understanding Authority

Benjamin J. Keele, Splitting Hairs: What Subtle Distinctions Teach Us About Authority, AALL Spectrum, Dec. 2011, at 15.

CASES

When used to describe the degree of persuasiveness of legal information, authority is an estimation of the power of information to influence a legal decision. Authority may be binding (also referred to as mandatory) which means that a court or other decision-maker believes the authority applies to the case before it and must be followed. Only primary authority can be binding.

Authority which is not binding is persuasive which means that a decision-maker can, if so persuaded, follow it. Secondary authority can never be binding only persuasive. In our hierarchical court system lower courts are bound by the decisions of higher courts.

Jurisdiction Court of Limited Jurisdiction Court of Original Jurisdiction Intermediate Appellate Court Court of Last Resort
Federal U.S. Tax Court U.S. District Courts U.S. Circuit Court of Appeals U.S. Supreme Court
Georgia Magistrate Court
Probate Court
Superior Court Court of Appeals Supreme Court
Maryland

District Court
Orphan's Court
Tax Court

Circuit Court Court of Special Appeals Court of Appeals
Michigan

District Court
Probate Court
Municipal Court

Circuit Court Court of Appeals Supreme Court
Montana

City Court
Justice's Court

District Court Supreme Court
New York Surrogates' Court
Town and Village Justice Court
Supreme Court Appellate Division of Supreme Court Court of Appeals
Pennsylvania

District Justice court
Philadelphia Municipal Court

Court of Common Pleas Superior Court
Commonwealth Court

Supreme Court

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For other state court systems see the National Center for State Courts website.

J. Myron Jacobstein, Roy M. Mersky, Donald J. Dunn, Fundamentals of Legal Research, 6th ed. (Foundation Press, 1994).

Primary Authority - Statutes & Regulations

STATUTES & REGULATIONS

Jurisdiction Session Laws and Statutory Compilations Administrative Law
Federal

U.S. Statutes at Large
United State Code (USC)

Code of Federal Regulations (CFR)
Federal Register (FR)

Georgia

Georgia Laws
Official Code of Georgia Annotated (OCGA)

Official Compilation Rules and Regulations of the State of Georgia
Georgia Government Register

Maryland

Laws of Maryland
Maryland Annotated Code (by subject)

Code of Maryland Regulations
Maryland Register

Michigan

Public and Local Acts of the Legislature of the State of Michigan
Michigan Compiled Laws

Michigan Administrative Code
Michigan Register

Montana

Montana Code Annotated
Montana Code Annotated Annotations

Administrative Rules of Montana
Montana Administrative Register

New York

Laws of New York
McKinney's Consolidated Laws of New York Annotated (by subject(

Official Compilation of Code, Rules & Regulations of the State of New York
New York State Register

Pennsylvania

Laws of Pennsylvania
Pennsylvania Consolidated States

Pennsylvania Code
Pennsylvania Bulletin

Definitions

Statute - also referred to as legislation, a positive statement of legal rules enacted by a legislature

Constitution - fundamental body of principles by which a poltical body such as a nation or state governs itself

Regulations - published under the authority of a statute that further interprets the statute and operates to carry-out the statutory intent

Court Rules - control the operation of the courts and the conduct of persons appearing before them

Administrative Rules - further detail the implementation of administrative regulations

Session Laws - the laws enacted by a state legislature at an annual or biennial session; usually published on a periodic basis during the session and then bound upon the completion of the session; generally arranged numerically or chronologically.

Codes - a compilation of enacted laws; generally arranged by subject

Finding Resources

Special Collections Librarian

Secondary Sources

Returning to the question of finding the relevant law, most researchers start with secondary sources. Court opinions, statutes, and regulations are expressions of the law. They are primary sources. Legal researchers have to consult the primary resources and understand their application and operation. Secondary sources help us understand the primary sources.

Basically everything that is not primary is secondary. They are the sources that describe or discuss or analyze the primary sources. They are used by researchers to help narrow down the massive amount of primary material to the relevant items.

There are a wide variety of secondary sources. 

  • Encyclopedias
  • Treatises - A treatise is a scholarly treatment of an area of law, it may be one or multiple volumes depending upon the broadness or narrowness of the topic.
  • Law Review/Journal Articles - very useful for newer topics
  • American Law Reports - are articles, referred to as annotations, that gather all of the cases on a fairly narrow topic
  • Annotated Materials
    • Contain research references
    • Contain citations to other cases, statutes, administrative rules/regulations, forms, and law review and journal articles.
    • Always use annotated materials if they are available

See "Research Steps" under "The Law" tab

Law Library Databases

See the complete list of Law Library online resources.

    Books

    All of these titles are located on the Balcony of the Law Library.

    Finding Articles & Cases

    FINDING CASES

    Print

    Encyclopedia - In my opinion the number one most useful thing to use when starting a research project is a legal encyclopedia. The encyclopedia will give you an introduction and overview of the area of law, it will introduce the relevant terminology, it will include citations to statutes, regulations, and representative cases.There are two general legal encyclopedias, both of them are located in the main reading room.

    American Jurisprudence (AmJur) - available in LexisNexis Academic
    Corpus Juris Secundum (CJS)

    There is also the Encyclopedia of Georgia Law

    Annotated Codes - case notes give a brief discussion of cases which site particular statutes. Look at the other references as well. If you have access to another annotated set take the time to look at it. While there may be a lot of overlap or duplication between sets there will be unique references.

    U.S. Code Annotated (USCA)
    U.S. Code Service (USCS)
    Official Code of Georgia (OCGA)
    West’s Code of Georgia Annotated

    Online

    Cornell’s Legal Information Institute

    Findlaw - go to Learn About the Law section

    Lawcrawler - Findlaw section for legal professions which performs legal web and database searches

    Washlaw- directory to everything

    FINDING ARTICLES

    Print

    Indexes - one reason to use a print index is the ability to browse which you might find useful at the beginning of a research project. Both of the print indexes are located in the main reading room.

    Index to Legal Periodicals
    Current Index to Legal Periodicals

    Use Interlibrary Loan to obtain articles that are not available online.

    Online

    There are two broad, general indexes to legal publications

    Index to Legal Periodicals and Books (full-text, 1983 to present, there is a separate index to earlier materials)
    Legaltrac (1980 to present)

    The Law Library also subscribes to some specialized indexes. Review the list. The online indexes indicate if the journal is owned by the law library or the main library.

    If the database you have searched does not contain the fulltext article you may be able to find it somewhere else. Places to check:

    • GAVEL - online catalog of the law library. If a journal is part of a database subscribed to by the Law Library the catalog provides a link to the online resource.
    • GIL- online catalog of the main library. Only contains the print journals. Use the E-journal Locator to determine if the main library subscribes to an electronic version of the journal.
    • Hein Online - Hein Online is a great resource with fulltext PDF versions.
    • Publisher’s web site
    • LexisNexis Academic


     

    LexisNexis Academic

    LexisNexis Academic

    The LexisNexis Academic service is a smaller set of the LexisNexis Research Service used by attorneys. LexisNexis Academic is available through GALILEO. Obtain the password for off campus access.
    Of relevance to you is that it contains:
    • Federal and state statutes
    • Federal and state regulations and rules
    • Federal and state court opinions
    • Law review articles
    • Shepard's Citations
    • International materials
    Notice the tabs on the left, US Legal, International Legal, etc. Under the Guides & Resources tab there is a product wiki and video tutorials. Generally try to use field searches unless your search terminology is very specific. Narrowing by date is an effective way to limit a large search result.

    Two other databases:

    Zimmerman’s Research Guide which is an online encyclopedia

    Lexis Web which is a legal specific search engine



    Reading Citations

    A correct legal citation should:

    Identify - identify the document or document part to which the author is referring

    Find - provide the reader with sufficient information to find the document or document part in the sources the reader has available (which may or may not be the same sources as those used by the writer)

    Relation to argument - furnish important additional information about the referenced material and its connection to the writer's argument so that a reader can decide whether or not to pursue the reference. Parenthetical notes.

    STATUTE

    Court opinions and articles don’t change. An article or court opinion will never be updated. Court opinions can be effected by later decisions, their authoritative value can be reduced or eliminated but the text of the original opinion will remain the same. So we can take that opinion stick it in a book and just leave it there. But that’s not true for statutes and regulations. Every time a legislature meets some statute is going to change and when statutes change then the regulations change. And because of that dynamic character we don’t just stick statutes and regulations in books and leave them there. So to cite to statutes and regulations we’ve developed differing numbering systems.

    4 U.S.C. §553

    • First number is title number
    • Abbreviation is United States Code (USCA, USCS)
    • Second number is section number
    The U.S Code is a codification. That means it is a subject arrangement of all the U.S. statutes. There are 51 subjects which are referred to as Title. A section number is not necessarily unique so the title number is necessary.
    There are official and unofficial versions of the U.S. Code. The government publishes the U.S. Code. The other two versions are publications of commercial companies.
    United States Code Annotated (USCA)
    United States Code Service (USCS)

    The reason people buy the commercial or unofficial versions of the code is because of the editorial enhancements. These enhancements, also referred to as annotations, help a researcher understand the meaning or application of a particular statute. If you already have a citation to a pertinent statute you can use it to help you research an issue.
    The citation above is to the Administrative Procedures Act section on rule making (P.L. 79-404).

    Ga. Code Ann. §8-2-21 (2004)
    • No separate title number
    • Section number is unique
    • Date of publication
    Each state has its own codification of its laws and there are a couple of different numbering schemes. Some use the title and section arrangement like the U.S. Code. Others, like Georgia, use a scheme in which the title is part of the complete section number. The title number is the first number of the chain of numbers. The date is the publication date of the volume itself, not the passage date of the statute. The citation above is to the state law requiring minimum building codes.

    ARTICLE

    Legal journals or law reviews have a unique citation system dictated by The Bluebook: A Uniform System of Citation (just referred to as the Bluebook).

    79 U. Cin. L. Rev. 375 (2010)

    • First number is volume number; volume numbers can correspond to calendar years or academic years
    • Second part is abbreviation of name of publication
    • Second number is page number on which the article begins
    • Number in parentheses is year of publication

    Consult Black’s Law Dictionary or the Bluebook for abbreviations. There are lots of Black's on the tables in the Law Library reading room.There are also dictionaries in LexisNexis Academic > US Legal > Legal Reference.

    The citation is to an article entitled "Preserving the Right to a Jury Trial in Public Employee Free Speech Litigation: The Protected Status of Speech Must be Labeled a Mixed Question of Law and Fact"

    COURT OPINION/DECISION

    483 U.S. 378, 107 S. Ct. 2891 (1987)

    • First number is volume number
    • Abbreviation U.S. is for United States Reports
    • Second number is page number
    • Number in parentheses is year of decision
    Both citations are to same case but in different sets of reporters. This is referred to as a parallel citation. Sometimes courts require attorneys to include the parallel cite in documents filed with the court. Depends on what you’re filing, with what body, and the particular rules that body expects you to follow. See list of common abbreviations. The citation is to Rankin v. McPherson.

    REGULATION

    36 C.F.R. §800.4 (2011)

    • Title number
    • Abbreviation for Code of Federal Regulation
    • Section number
    • Year of specific edition cite
      • Year is important for regulations as the CFR is republished every year.

    Administrative agencies are part of the executive branch. Congress delegates the power to issue regulations, known as promulgation, and to adjudicate disputes. Congress delegates this power with the expectation that the regulations will carry out intent of legislature. If the regulations, also called rules, are properly promulgated and fulfill the intent of the statute they have the same legal effect as statutes.The regulation above is for the identification of historic properties under the section 106 process.

    Administrative Materials

    FEDERAL

    Background

    United States Government Manual - annual directory with emphasis on the executive branch and regulatory agencies

    • Citations to statutes creating & affecting the agency
    • Information about subsidiary units and predecessor agencies
    • Names and functions of major officials
    • Organizational charts
    • Sources of information available from the agency

    Leadership Library - organizational charts, biographical and contact information for federal personnel

    Statutes

    The U.S. Code is official but researchers prefer the U.S. Code Annotated or U.S. Code Service because they contain helpful annotations and are published in a more timely manner.

    Legislative History

    If you’re trying to learn something about a particular piece of legislation, one of the most important documents to look at is the Committee Report. These resources also have the various versions of bills and documents submitted by committee witnesses.

    Publication of Federal Regulations

    Federal Register - daily publication for executive and administrative agency actions

    Code of Federal Regulations - subject arrangement with indexing and updating

    Administrative Agencies

    One of the things you will generally not find on the agency web sites are any regulations promulgated by the agency. Those are found in the Code of Federal Regulations (CFR). You can link to the CFR online through the GPO's Federal Digital System (FDSys). The GPO is the Government Printing Office, the official publisher, so to speak, of the government. As the tagline on FDSys says, "America's Authentic Government Information".

    • USA.gov - This site focuses on answering questions about the government and providing links for citizens. There is a convenient list of government agencies.
    • FedWorld - This site is maintained by the National Technical Information Service and focuses on providing access to the information produced by the government.

    Agency Decisions

    GEORGIA

    The state government, like the federal government, is divided into three branches, regulations are under executive, statutes under legislative, cases under judicial.

    Georgia.gov is the official web site for the state of Georgia.

    The Official Code of Georgia (OCGA) is at the site for the Georgia General Assembly.

    The rules and regulations from the state agencies

    Both the Supreme Court and the Court of Appeals have web sites but use LexisNexis Academic  or lexisOne to search for opinions.

    The official print source for the opinions of the Georgia Supreme Court is the Georgia Reports. The official print source for the opinions of the Court of Appeals is the Georgia Appeals Reports. The opinions of both courts are also published in the unofficial Southern Reporter, which is referred to as a regional reporter. Pay attention to how far back the databases go and how frequently or quickly they are updated.

    See more Georgia materials, including the historic Georgia Codes, under the "Georgia" tab.

    Georgia

    EXECUTIVE

    Governor

    Administrative Rules and Regulations

    Forms

    Administrative Agencies

    Georgia Research

    LEGISLATIVE

    • Georgia Legislative Navigator - a highlight of legislation that is likely to have significant impact on the public. The Members section shows bill sponsorship, recent votes, committee assignments, and top campaign donors. The navigator is updated daily during the legislative session. Look for the Predict-a-bill tool.
    • Lawmakers - provides detailed analysis of each day’s legislative sessions. Archived versions of the show are available from 2009.

    Constitution

    Local Government

    JUDICIAL - STATE

    Court Structures

    Administrative Office of the Courts

    Supreme Court of Georgia

    • Recent opinions from the court (2015-present) use the Opinions tab at the top of the page
      • LexisNexis Academic - use Advanced Options to select Georgia
      • LLMC Digital Vols 1-156 (1846-1923)
    • All Court Rules 

    Court of Appeals of Georgia

    • Opinions (2003-present, need case name or docket number)
      • LexisNexis Academic - use Advanced Options to select Georgia
      • LLMC Digital Vols. 1-30 (1907-1923)
    • Rules

    Superior Courts of Georgia

    • Council of Superior Court Judges
    • Find a local Superior Court
    • Uniform Rules current through Sept. 22, 2016
    • Superior Court Clerks Coop. Authority 
      • UCC and real estate data online
    • Superior Court opinions and reports in LLMC Digital
      • Superior Court of the Eastern District
        • Thomas Charlton's Reports 1805-1810
        • Robert Charlton's Reports 1811-1837
      • Superior Courts of Law and Chancery
        • Dudley's Reports 1830-1833
      • Superior Court Decisions 1842-1843
    • Various other reports in LLMC Digital
      • Gault's Reports 5th ed. (1820-1846)
      • Georgia Law Reporter (1885-1886)
      • Georgia Rpts. Annot. Repr.: The Charltons, Dudley, & GA Dec.

    Databases

    JUDICIAL - FEDERAL

    All federal court opinions are available in LexisNexis Academic

    Appellate Courts

    U.S. Court of Appeals - 11th Circuit

    U.S. District Courts

    Middle District

    Northern District

    Southern District

    U.S. Bankruptcy Courts

    Middle District

    Northern District

    Southern District

    Miscellaneous

    Index to Memorials and Tributes, 256 Ga. XLIII (1995)

    Contact

    Special Collections Librarian

    Read This Article

    Orin S. Kerr, How to Read a Legal Opinion: A Guide for New Law Students, 11 Green Bag 51 (2007)

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