Research in Primary Authority: Enacted Law

1. Research in Primary Authority: Enacted Law Kyle K. Courtney Northeastern University Law

2. 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

3. 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

4. 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)

5. 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.

6. 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.

7. 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

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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.

16. I’m Just a Bill ♫

17. 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.

18. 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 How Cases and Statutes Differ

19. 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

20. 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.

21. 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.

22. 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.

23. 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

24. Sources for U.S. Statutes + Codification = The House Office of the Law Revision Counsel Statutes at Large(Stat.) Codes include all statutes currently in force. Codes are arranged in order by topic/subject. United States Code (U.S.C.)

25. 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.

26. Sources for U.S. Statutes + Annotations U.S.C.S.or = • historical notes • references to secondary sources • notes of decisions Annotated codes are usually updated more frequently than unannotated codes. United States Code (U.S.C.) U.S.C.A.

27. 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

28. 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

29. FTC Act, 15 U.S.C. § 45(a)

30. 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)

31. 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/

32. Federal Trade Commission Act,Beginning of Outline

33. 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”

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

35. 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)

36. 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

38. 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.

40. **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." .

41. **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 alwaysnecessary on Lexis, Westlaw, or free Internet sites such as the U.S. House of Representatives or Thomas.

42. 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

43. 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.

44. 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

46. 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

47. 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

48. 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

49. 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

50. 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)