Finding the Law: Administrative Law & Secondary Sources in PRINT Ann Hemmens University of Washington Law Library Introduction to Environmental Law & Process.
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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 6, 2005
Highly Regulated Society Banking (FDIC, OCC) Environment (EPA) Health (HCFA, FDA) Labor Law (NLRB, OSHA) Tax (IRS) Securities (SEC) Utilities (FCC, FERC)
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
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.
Organization of Federal & State Governments Constitution Legislative Statutes Stat., USC RCW Judicial Cases US, Fed 3d P3d, Wash. Executive Regulations Administrative Decisions FR, CFR WAC
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.
Legal Citations Federal Statute Endangered Species Act Pub.L.No. 93-205 87 Stat. 884 linklink 16 U.S.C. § 1531 et seq. (2000 ) 16 U.S.C. § 1538 Prohibited Acts linklink Federal Regulations Importation, Transportation and Exportation of Wildlife, 50 C.F.R. Part 14 (2004) linklink 50 C.F.R. § 14.17 (2004): “Personally Owned Pet Birds” linklink Agency? US Fish & Wildlife Service within the Dept. of the Interior.
More Legal Citations Federal Cases Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). linklink Only need U.S. cite (ignore parallel cites) San Carlos Apache Tribe v. U.S., 272 F.Supp.2d 860 (D.Ariz. 2003).
Legal Research Questions What type of law might govern this issue? statutes? regulations? cases? Which jurisdiction? federal or state or both? Did you update your research?
Administrative Law What is it? Rules, regulations, and decisions created by administrative agencies (federal & state). Which agency covers a specific subject area? U.S. Government Manual (http://www.gpoaccess.gov/gmanual/index.html). Who is the Secretary of the Department of the Interior?http://www.gpoaccess.gov/gmanual/index.html Procedural Standards? Administrative Procedure Act (APA) (5 USC §551 et seq.). 1) Notice of proposed rule 2) Comment period 3) Final rule & response to comments
Authorization by Statute The Secretary shall by regulation... Determine whether any species is an endangered species or a threatened species because of... (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) 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
Background – 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 …
Code of Federal Regulations (CFR) Rules & regulations in force Published annually Index & finding tables
Federal Register (FR) Daily Proposed regs New regs Presidential documents Executive orders Proclamations
Crystal Ball Semiannual Regulatory Agenda Federal Register Apr & Oct
How to Find Regulations? Code of Federal Regulations Index (CFR & USCS) Parallel Table of Authorities and Rules (in CFR Index volume)(statute → regulation table) Federal Register Index Annotated Codes United States Code Annotated (USCA) United States Code Service (USCS)
How to Find Regulations? Secondary Sources Treatises & Hornbooks Legal Encyclopedias (AmJur & CJS) Law Reviews Annotations (ALR Fed) Government Documents Books (search law library catalog)
One-Stop Shopping Collect primary sources Analyze Index
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
Administrative Decisions Where are they published? Cohen, Berring & Olson, How to Find the Law, Appendix D websites
Sample Search for Reg & Update Looking for Regulations implementing the Endangered Species Act. Specifically – lists identifying the species of wildlife and plants that the Director (US Fish & Wildlife Service within the Dept. of Interior) has determined are endangered or threatened under section 4(a) of the Act and definitions.
CFR Index Endangered and Threatened Species Fish, Wildlife and Plants Lists, 50 CFR 17
50 CFR 17 Part 17 Table of Contents and 50 CFR §17.1 Part 17 50 CFR § 17.3 Definitions 50 CFR § 17.3 “Authentic native articles of handicragts and clothing” 50 CFR § 17.40 Special Rules – mammals. 50 CFR § 17.40
Any changes to 50 CFR Part § 17.3? Updating Regulations 1) CFR volume (date on cover of volume containing Title 50 of CFR = Oct. 1, 2004 )[update from oct.1, 2004 to today!] 2) List of Sections Affected (LSA)(most recent monthly issue = July 2005 )[includes changes from Oct. 1, 2004 to July 29, 2005!] List of Sections Affected 1) Title 50 Title 50
Updating Regulations cont’d 3) Federal Register (last day of prior month = Aug. 31, 2005) – “CFR Parts Affected During August” Table at end of volume.CFR Parts Affected During August 1) Proposed Rule affecting 50 CFR 17: found on page 46387 of Federal Register in August 2005.46387 4) Federal Register (most recent date of current month) – “CFR Parts Affected During September” Table at end. [Library only has up to Sept. 13 th in print!]
Final Rule Example ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 Cyfluthrin; Pesticide Tolerance ACTION: Final rule 70 FR 53944 70 FR 53944 (Sept. 13, 2005)
Secondary Sources Marine Mammal Protection Act US Code cite? Use Popular Names TablePopular Names Table Regulations related to it? USCS or USCA USCS Encyclopedia entries explaining it? AmJur or CJS AmJur
Secondary Sources – cont’d ALR “article” about it? ALR Use reference from USCS or ALR Index Law review article on it? Law review Use reference from USCS or online Index (called LegalTrac) Treatise or Hornbook or Nutshell or book from the Law Library Treatise
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