Research in Primary Authority: Enacted Law

Kyle K. CourtneyNortheastern University Law

Plan for Today

All About Statutes and Constitutions Review Constitutions and Amendments Review Statutes (and their creation)

a.k.a. ♫ I’m Just a Bill ♫ Finding statutes by subject Find statutes by “popular name” Session Laws

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

What is a constitution?

Highest law of any democratic regime States the structure of the government,

powers of the government, and limits on the government’s authority.

United States Constitution 1781 Articles of Confederation 1789 U.S. Constitution Followed immediately by the Bill of Rights (the

first 10 Amendments)

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.

U.S. Constitution (cont’d)

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.

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

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.

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.

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.

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.

Statutory law, one of three primary sources of law in this country, is at the heart of a majority of legal research problems.

An Act

Legislative Branch

Judicial Branch

Cases

Executive Branch

Agency Regulations,

Decisions

Statutes In General

Statutes

Bill Passes Congress or State

Legislature

President or

Governor Signs Bill

Introduction to Statutes

A statute is created when Congress or a state legislature passes a bill, and the president or governor signs it.

An Act

Bill Passes Congress or State

Legislature

President or

Governor Signs Bill

Introduction to Statutes

Once signed, the federal or state bill is published as a Slip Law

An Act

“Slip Law”

Bill PassesBoth Houses of Congress

PresidentSigns Bill

Public Laws/Session Laws

Introduction to Statutes

Session laws contain Public Laws arranged in chronological order.

I’m Just a Bill ♫

Basic Provisions of a Statute

Opening Provisions: the statute’s name, its definitions, and scope.

Operative Provisions: the general rule, exceptions, consequences of violation, and enforcement provisions.

Closing provisions: severability, effective date, “sunset” provisions.

How Cases and Statutes Differ

Cases law made by courts decision only applies

to parties in case before the court

court’s 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

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

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.

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.

Bill PassesBoth Houses of Congress

PresidentSigns Bill

Public Laws/Session Laws

Introduction to Statutes

Session laws contain Public Laws arranged in chronological order.

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

Statutes at Large(Stat.)

Sources for U.S. StatutesSources for U.S. Statutes

Codes include all statutes currently in force.

Codes are arranged in order by topic/subject.

United States Code (U.S.C.)

The House Office of The House Office of the Law Revision the Law Revision

Counsel Counsel

Codification = Arrangement by TopicCodification = Arrangement by Topic

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

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

Sources for U.S. StatutesSources for U.S. Statutes

Annotated codes are usually updated more frequently than unannotated codes.

United States Code (U.S.C.)

U.S.C.S.or

U.S.C.A.

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

How to Research Statutes

1. Select an appropriate annotated code 2. Use the index or statutory outlines or

popular names table 3. Locate the statute’s 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

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

FTC Act, 15 U.S.C. FTC Act, 15 U.S.C. § 45(a)§ 45(a)

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)

2. Use the Index, Outlines, or Tables

Second best method is to use the statute’s 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/

Federal Trade Commission Act,Federal Trade Commission Act,Beginning of OutlineBeginning of Outline

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”

Popular Name Table U.S.C.A.Popular Name Table U.S.C.A.

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)

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 Statute’s history, enactment dates, and

evolving statutory language Pay close attention to references to different

sections or other statutes

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.

**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." .

**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.

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

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.

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

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

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

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

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

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)

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.

Statutes on Public Websites

Public websites not as useful as fee services or print

$$ Free $$

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

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/

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.

Local Ordinances

Traditionally, the Town Clerk’s Office

Internet

Municipal Code Corporation Sterling Codifiers American Legal Publishing

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

What We Covered Today

All About Statutes and Constitutions Review Constitutions and Amendments Review Statutes (and their creation)

♫ I’m Just a Bill ♫ Finding statutes by subject Find statutes by “popular name” Session Laws