Research in Primary Authority: Enacted Law

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Research in Primary Authority Enacted Law

• Kyle K. Courtney
• Northeastern University Law

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Plan for Today

• All About Statutes and Constitutions
• Review Constitutions and Amendments
• Review Statutes (and their creation)
• a.k.a. ? Im Just a Bill ?
• Finding statutes by subject
• Find statutes by popular name
• Session Laws

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Where are we in the stages of a Research Plan?

• familiarize yourself with the area of law
  secondary sources
• locate, read, and analyze primary authority
• make sure primary authority is good law cite
  check, validate, update
• when appropriate, locate additional primary and
  secondary authorities

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What is a constitution?

• Highest law of any democratic regime
• States the structure of the government, powers of
  the government, and limits on the governments
  authority.
• United States Constitution
• 1781 Articles of Confederation
• 1789 U.S. Constitution
• Followed immediately by the Bill of Rights (the
  first 10 Amendments)

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How to Amend the U.S. Constitution

• A proposed Amendment first must pass two-thirds
  of both Houses of Congress or the legislature of
  two-thirds of the states.
• It then must be ratified by three-fourths of the
  states.
• In 200 years only 27 Amendments have ever made it
  through this entire process.

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U.S. Constitution (contd)

• Creates the three branches of government
• Created Congress and empowers it to enact
  legislation (and limits that power as well).
• Created the federal court system
• Defines the jurisdiction of the federal courts
• Creates process for nominating S.C. Justices
• Grants Congress right to create lower fed. cts.
• Presidential Powers veto, treaties, etc.

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State Constitutions

• Similar to Federal Constitution
• More frequently Amended
• Public initiative, Public referendum, etc.
• Mirror the rights of the U.S. Const.
• May even grant additional rights, as long as they
  do not conflict with the U.S. Const.
• Often located at the beginning of a state
  annotated code or statute

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Constitutions in General

• Broad Principles
• Many provisions have little detail or explanation
• Organized by parts and subparts (Articles and
  Clauses)
• When researching, Amendments usually appear apart
  from the constitutions, as separate provisions.

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Researching Constitutions (for free!)

• Articles of Confederation
• Articles of Confederation. From The Founders'
  Constitution.
• Articles of Confederation. From Yale's Avalon
  Project.
• Constitution
• Constitution of the United States of America.
  From Cornell's Legal Information Institute.
• Constitution of the United States. From the
  National Archives and Records Administration.
• Constitution of the United States. From Yale's
  Avalon Project.
• Text of the Bill of Rights
• Bill of Rights. From Cornell's Legal Information
  Institute.
• Bill of Rights. From The Founders' Constitution.
  Includes the text of Amendments 1 to 10, along
  with background documents.

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Researching Constitutions

• The Constitution of the United States of
  America Analysis and Interpretation
  http//www.gpoaccess.gov/constitution/
• Provides case summaries, historical information,
  and extensive commentary.
• American Constitutional Law by Lawrence Tribe.
  Treatise on constitutional law organized around
  issues and constitutional functions. The text is
  heavily footnoted with references to other
  treatises, law review articles, the U.S. Code,
  and Supreme Court cases.

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Introduction to Statutes

• The primary source of law generated by the
  legislative branch of the government is statutory
  law. The laws enacted by the Congress of the
  United States and the legislatures of the several
  states are customarily referred to as statutes.
• The enactments made on city and county levels are
  called ordinances.

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Statutes In General
Legislative Branch
Judicial Branch
Executive Branch
An Act
Agency Regulations, Decisions
Cases
Statutes
Statutory law, one of three primary sources of
law in this country, is at the heart of a
majority of legal research problems.
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Introduction to Statutes
An Act
Bill Passes Congress or State Legislature
President or Governor Signs Bill
A statute is created when Congress or a state
legislature passes a bill, and the president
or governor signs it.
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Introduction to Statutes
An Act
Bill Passes Congress or State Legislature
President or Governor Signs Bill
Slip Law
Once signed, the federal or state bill is
published as a Slip Law
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Introduction to Statutes
Slip Law


Bill Passes Both Houses of Congress
President Signs Bill
Public Laws/Session Laws

• Session laws contain Public Laws arranged in
  chronological order.

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Im Just a Bill ?
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Basic Provisions of a Statute

• Opening Provisions the statutes name, its
  definitions, and scope.
• Operative Provisions the general rule,
  exceptions, consequences of violation, and
  enforcement provisions.
• Closing provisions severability, effective date,
  sunset provisions.

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How Cases and Statutes Differ

• Cases
• law made by courts
• decision only applies to parties in case before
  the court
• courts ruling is limited by factual situation in
  case before it

• Statutes
• law made by legislature
• intended to apply to broad categories of persons
• intended to address broad categories of
  situations
• Constitutions
• supreme law in a jurisdiction
• vague and general terms

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Mandatory Authority Cases vs. Statutes

• Statutes are generally controlling
• but Cases are needed to interpret statutes
• Balance of Powers Statutes can modify, clarify,
  supplement, or overturn case law
• Balance of Powers Cases can decide whether
  statute applies to facts and can assess
  constitutionality of statute
• Both can be new law not previously covered by the
  other

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Research Plan for Issue Covered by Federal or
State Statutes, Step 1

• Jurisdiction Federal or State
• Type of Law Enacted law (statutes)
• Preliminary Issue Statement
• Step 1 If you are unfamiliar with the area of
  law, spend 10 to 60 minutes familiarizing
  yourself with the area of law by in a practice
  book, in a hornbook, in a Nutshell, in a legal
  encyclopedia, or in another secondary source.

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Research Plan for Issue Covered by Statutes, Step
2

• Step 2 Locate, read, and analyze the applicable
  United States Code/State Code sections and cases
  that have interpreted or applied those sections.
• Step 3 Cite check the statutes and cases to make
  sure that they are still good law.
• Step 4 If appropriate, locate and read
  additional primary and secondary authorities.

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Introduction to Statutes
Slip Law


Bill Passes Both Houses of Congress
President Signs Bill
Public Laws/Session Laws

• Session laws contain Public Laws arranged in
  chronological order.

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Sources for Statutes

• Slip laws and Session laws
• published/arranged by date enacted
• usually not used for most statutory research
• Annotated and Unannotated Codes
• arranged by topic
• include all statutes currently in force
• unannotated codes use to get big picture, to
  narrow search, or to print several sections
• annotated codes include statute, history, and
  references to related resources, including cases
  and secondary sources, updated frequently

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Sources for U.S. Statutes

Codification

The House Office of the Law Revision Counsel
Statutes at Large(Stat.)
United States Code (U.S.C.)

• Codes include all statutes currently in force.
• Codes are arranged in order by topic/subject.

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Codification Arrangement by Topic
Americans with Disabilities Act of 1990,Pub. L.
No. 101-336, 104 Stat. 327
Americans with Disabilities Act of 1990, 42
U.S.C. 12101-12213

• Notice that the titles and sections in the
  Public Law change when the statute is codified.

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Sources for U.S. Statutes

Annotations
U.S.C.S.or

• historical notes
• references to secondary sources
• notes of decisions

United States Code (U.S.C.)

• Annotated codes are usually updated more
  frequently than unannotated codes.

U.S.C.A.
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How to Research Statutes

• 1. Select an appropriate annotated code
• 2. Use the index or statutory outlines or
  popular names table
• 3. Locate the statutes current language in the
  main volume or updating materials
• 4. Study the correct and complete statutory
  language
• 5. Review the annotation case descriptions,
  secondary sources, and notes

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1. Select an appropriate annotated code

• Federal Statutes appear in two unofficial codes
• United States Code Annotated (USCA)
• United States Code Service (USCS)
• Also United States Code (USC) is the official
  code published by the government
• The U.S.C. is completely revised approximately
  every six years. In the intervening years,
  revisions are made to various titles through
  cumulative bound supplements.
• Advantage the unofficial codes
• Published frequently
• Update frequently

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FTC Act, 15 U.S.C. 45(a)
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2. Use the Index, Outlines, or Tables

• Index approach is the best method
• USCA/USCS both have a multivolume index (issued
  annually)
• USCA/USCS also have an individual title index
  (located at end of the title)

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2. Use the Index, Outlines, or Tables

• Second best method is to use the statutes
  outlines
• First start with a list of titles
• Then move to a list of chapters within the title
• Then to a list of sections within a chapter.
• http//www.law.cornell.edu/uscode/

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Federal Trade Commission Act,Beginning of Outline
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2. Use the Index, Outlines, or Tables

• Use the Popular Names Table
• Some, but not all, statutes have official or
  popular names.
• USCA Popular Names Table volume
• USCS Tables volumes include a table of popular
  names.
• Ex. National Voter Registration Act of 1993
  (Motor Voter Law)
• Ex. The Uniting and Strengthening America by
  Providing Appropriate Tools Required to Intercept
  and Obstruct Terrorism Act of 2001

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Popular Name Table U.S.C.A.
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3. Locate the current language and updating
materials

• Usually, current language will be in the main
  volume - sometimes it is found in the updates
• Codes are updated in stages
• 1. Pocket part or supplement pamphlet
• 2. Newer information appears in supplements
  shelved at end of code.
• 3. Advanced legislative service provides language
  of newly enacted laws (no annotated materials)

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4. Study the correct and complete statutory
language

• Read through the statute as a whole
• Examine the statement and purpose (introductory
  sections)
• The definitions and scope
• The general rule and exceptions
• Consequences or enforcement provisions
• Statutes history, enactment dates, and evolving
  statutory language
• Pay close attention to references to different
  sections or other statutes

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5. Review the annotation

• Biggest advantage case annotations
• Notes of decisions" in the U.S.C.A. and
  Interpretive notes and decisions" in the
  U.S.C.S.
• Organized topically by a subject index.
• Check the pocket part!
• Check both the U.S.C.A. and U.S.C.S. when
  researching a statute - they contain references
  to different sources.
• Ex. U.S.C.A., (West), provides West Topic and Key
  Numbers and refers to other West publications.
• U.S.C.S refers to A.L.R. annotations and other
  sources.

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Updating Statutes

• For print codes
• For the U.S.C.A. and U.S.C.S., check the pocket
  part. For the U.S.C., check the bound supplement
  for the most recent year.
• The U.S.C.A. and U.S.C.S. both periodically
  publish softbound pamphlets that update the
  annual pocket parts.
• U.S.C.A. - find the most recent softbound
  pamphlet (usually kept at the end of the set
  after the General Indexes) and consult the table
  called "U.S. Code Sections Amended, Repealed,
  New, Etc. The pamphlets are organized by Public
  Law No.
• U.S.C.S. - The Cumulative Later Case and
  Statutory Service is organized by US Code
  citation and contains new and amended
  legislation, and new case citations. Use the
  "Table of Code Sections added, amended, repealed,
  or otherwise affected." .

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Updating Statutes

• Because a lag time exists due to the time it
  takes to publish these update pamphlets and for
  libraries to receive them, further updating is
  always necessary on Lexis, Westlaw, or free
  Internet sites such as the U.S. House of
  Representatives or Thomas.

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Researching Statutes in Session Laws

• Occasionally a topic will require research in
  session laws
• If pertinent material is prior to the present
  code
• Track changes of code from year to year
• Session laws contain ALL laws enacted during a
  legislative session, including private laws and
  temporary laws that are not codified
• private laws laws which affect a particular
  person or specific situation, generally not in
  code

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Researching Statutes in Session Laws

• Locate the pertinent law by its public law number
  (from the code) or through the session laws
  subject index
• United States Statutes at Large (Statues at Large
  or Stat.) - official compilation of federal
  session laws.
• United States Code Congressional and
  Administrative News (USCCAN) is the unofficial
  publication.

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Statutes at Large

• Organized by Public Law Number
• Find the Public Law Number in an annotated code
• Ex. Pub.L. 98-288
• If no reference to public law number
• Statutes at Large volumes contains a subject
  index that is unique to the acts in that volume
• Also http//www.gpoaccess.gov/statutes/index.html
  

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State Session Laws

• Example Massachusetts
• The session laws passed by the Massachusetts
  legislature first appear as slip laws. Later they
  are officially published in the Acts Resolves
  of Massachusetts.
• Also available online for free at
  http//www.mass.gov/legis/laws/seslaws.htm
• Word and Phrase Searchable

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How to Search Statutes in Online

• Advantage of databases and online formats
• Information is very current
• Databases are cumulative
• Move easily through sections of the statute or to
  other references

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How to Search Statutes in Online

• Select an appropriate service and code database
• Run one or more searches
• Obtain and study the current, correct, and
  complete statutory language
• Review the annotations
• Conduct addition searches as needed

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Selecting the Code Database

• For research ? Annotated Code
• The current USCA and historical versions going
  back to 1996 are available through Westlaw (USCA)
• TOC, Popular Name Table, Subject Index, etc.
• The current USCS is also available for browsing
  or searching through Lexis (USCS)
• TOC, Popular Name Table, Statutes at Large Table,
  etc.
• United States Code

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Selecting the Code Database

• U.S. Statutes at Large
• Lexis (USSALT) has the Statutes-at-Large Table
  which lists Public Laws enacted from 1789 to
  Present.
• Westlaw (US-STATLRG) United States Statutes at
  Large 1789 1972.
• Westlaw also has the statutes enacted 1973 to
  2004 available for searching. (US-PL-OLD)
• Public Laws (Slip Laws)
• Lexis (USCS - Public Laws)
• Westlaw (US-PL)

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Statutes on Public Websites

• There are many websites that have statutory
  material, but they vary in depth
• Credibility
• Currency of information
• Means of access
• Information beyond statutory language itself
• Focus on legislative websites, government agency
  sites, or other credible sources.

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Statutes on Public Websites

• Public websites not as useful as fee services or
  print
• Free

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Statutes on Public Websites

• U.S. Code
• Official Code is available online
• GPO Access
• Cornell's Legal Information Institute
• FindLaw
• U.S. House of Representatives

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Statutes on Public Websites

• Statutes at Large
• A free site for statutes passed by the 1st
  through the 42nd Congresses (1789-1873) from the
  Library of Congress.
• Slip Laws
• THOMAS - From the Library of Congress
  http//thomas.loc.gov/bss/d109/d109laws.html
• Massachusetts online Statutes -
  http//www.mass.gov/legis/

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Constitutions on Public Websites

• Constitutions
• Legal Information Institute. Provides links to
  the constitutions of all 50 states and the
  District of Columbia.
• FindLaw State Constitutions. Another free site
  providing links to the constitutions of each of
  the 50 states.
• U.S. States and Territories by the Law Library of
  Congress. A free site providing links to
  constitutions, statutes, cases, regulations, and
  other information from each of the 50 states.

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Local Ordinances

• Traditionally, the Town Clerks Office
• Internet
• Municipal Code Corporation
• Sterling Codifiers
• American Legal Publishing

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Uniform Act

• Uniform acts are proposals for statutes drafted
  by various organizations that seek to standardize
  the law of the 50 states. (Ex. The Uniform
  Commercial Code)
• National Conference on Uniform State Laws
• American Law Institute
• Sections of the ABA and the Council of State
  Governments

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What We Covered Today

• All About Statutes and Constitutions
• Review Constitutions and Amendments
• Review Statutes (and their creation)
• ? Im Just a Bill ?
• Finding statutes by subject
• Find statutes by popular name
• Session Laws