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