Transcript Document

STATUTORY RESEARCH
INSTRUCTIONAL AIDS SERIES
Contents
• Introduction
• The Legislative Process
• Anatomy of a Statute
• Statutory research: Print and Online
• Updating Statutory Research
• Expanding Statutory Research
– KeyCite®
– Case Law (Annotations)
– Legislative History
– Secondary Sources
Introduction
Sources of American Law
• Statutory Law is enacted by the Legislatures.
• Case Law is decided by the Courts.
• Regulations are issued by the Executive Branch
(Agencies).
Federal Statutes
• Federal statutes are codified in the United States
Code.
– The United States Code (USC) is the official version of
the statutes and is published by the Government Printing
Office.
– The United States Code Annotated® (USCA)® in print
is published by Thomson Reuters.
– USCA ® is the databse on Westlaw ® that contains the
USCA ®.
State Statutes
• Each state has a statutes publication. The
publication might be called statutes, statutes
annotated, laws, code or code annotated. The
annotated versions enhance your ability to find
relevant cases and statutes.
• XX-ST-ANN (where XX is the state’s two-letter
postal abbreviation) is the database identifier for
annotated state statutes on Westlaw ®.
State Legislative Processes
• Most state legislatures are modeled after the United States
Congress and consist of two houses. Only Nebraska has a
one-house legislature.
• Legislation moves through state legislatures in much the
same way it moves through Congress.
• The governor signs or vetoes the legislation and there are
state provisions for overriding a governor’s veto.
• What is said about the federal legislative process is usually
true of state legislative processes.
The model for this presentation will be the federal statutes.
Statutes: the Neglected Side of Legal Research
• Most of what you learn in law school will be based
on the common-law traditions of the courts.
• Statutory law is often obscurely or ambiguously
worded.
– It must be interpreted by case law.
– This case law often becomes a more accessible source of
law than the statute.
• Statutory research may seem complicated. This is
due, in part, to the fact most that researches are not
trained in statutory research.
Statutes are the Neglected Side of Legal Research
But…
• Statutes are around to stay. They are the
cornerstone of our legal system.
• Only a court of competence can declare a clearly
worded statute unconstitutional.
• Don’t fight them. There is help!
The Legislative Process
The Legislative Process
• Introduction of a bill (proposed legislation)
• Passed by both houses of Congress
• Signed by president or president’s veto is
overridden
• Becomes a “session law” or “public law”
• Incorporated into statutory code
A Bill Is Introduced
• A bill is introduced by a sponsor(s) in one or both
houses of Congress.
• A bill is assigned a bill number (H.R. 14, 107th
Cong, 1st Sess. (2001)).
• This bill number usually follows the proposed
legislation through hearings, amendments,
congressional committees, etc., until enactment or
the end of the current legislative period.
A Bill Is Introduced
• A companion bill may be introduced in the other
house of the legislature at any time.
• Committee hearings may be held and amendments
to the bill may be made. If the committee votes
favorably on the bill, a committee report in support
of the bill accompanies the bill back to the floor in
many jurisdictions.
• A bill may die in committee and never research the
full house for vote.
Federal bill S.904 (Leave No Child Behind Act of 2001),
sponsored by Senators Dodd, Wellstone, and Kennedy, as it
appears in the Congressional Bills – 107th Congress
database.
A Bill Becomes Law
• When the bill passes one house, it is sent to the
other house for consideration.
• The other house may approve and pass the bill to
the president in identical form.
• More likely, the other house will propose a variation
of the bill and both houses must negotiate a
compromise.
• When both houses pass the bill in identical form, it
is sent to the president for a signature or veto.
A Bill Becomes Law
• If signed (or not vetoed within 10 days), the bill
becomes a “session law” or “public law.”
• If the president vetoes the bill, the veto may be
overridden by two-thirds majority in both houses. (If
the president takes no activity on the bill at the end
of a legislative session the bill is, in effect, vetoed.
This is called a “pocket veto.”)
• The public law is renumbered using the number of
the congressional session and the numerical order
in which the law was enacted:
• P.L. 107-14 and P.L. 107-15 are the 14th and 15th bills to be
enacted by the 107th session of Congress.
A public law may
• Add a section (statute) in the statutory code
• Change language in a section (statute)
• Repeal a section (statute) of the statutory code
• Re-number a section (statute)
• Do all of the above
Public Laws Are Published
• An enacted law is first published officially by the
Government Printing Office as an individual slip
law and sent to government depository libraries
and other libraries that subscribe to these
publications.
• Public laws are published in compiled volumes in
chronological order in The Statutes at Large, the
official government publication. There is a two to
four-year lag in publication of these volumes.
Public Laws are Published
• The U.S. Code Congressional and
Administrative News ® (USCCAN), published by
Thomson Reuters, issues monthly pamphlets
including newly enacted laws.
• The monthly USCCAN pamphlets are reissued in
bound volume after each congressional session.
• Public laws are also published in the USCCAN and
US-PL (United States Public Laws) databases on
Westlaw ®.
A slip law as it appears on Westlaw in the US-PL database
shortly after enactment. There are also archived public laws
in the US-PL-OLD database, which contains public laws from
1973 to the previous session of Congress.
A Public Law Is Codified
• The public law then changes the statutory code to:
• Bring all laws on the same topic together
• Eliminate all repealed or expired statutes
• Unite amendments with the original statute
• This process is called codification
• The United States Code is divided into 50 titles, often called
codes (see next screen)
• Title 11 is the Bankruptcy Code
• Title 26 is the Tax Code
United States Code is
organized in broad subject
categories called titles.
The 50 titles are in rough
alphabetical order.
Each title is further divided into individual sections, which
contain the actual text of the statutes. (The words section and
statute are usually synonymous.)
A single public law may amend of affect many sections in
different titles of the Code.
The Public Safety Officer Medal of Valor Act of 2001 or P.L.
107-12 amended sections in Titles 42 and 15 of the USCA.
Sections in the
public law
Codification in
the U.S. Code
Public Law 106-120, the Intelligence Authorization Act for the
Fiscal Year 2001, has been codified in both Title 50 and Title
21 of the United States Code. The USCA-POP (USCA
Popular Name Table) database on Westlaw shows where a
public law section has been codified in the United States
Code Annotated.
Summary of the Legislative Process
Bill Passes Congress or State Legislature
to
President or Governor Signs Bill
to
Session Law/ Public Law
to
Statutory Code
Codification occurs when the language of the
session or public law changes the statutory code in
some way.
Question
Which of the following is a true statement?
1.Each public law amends a single statute.
2.A slip law is the final version of a statute.
3.Codification is the process in which sections of
public laws amend, add to, or repeal the relevant
portion(s) of the United States Code.
4.The president’s veto of a bill may be overridden by
a majority of both houses.
Question
Which of the following is a true statement?
1.Each public law amends a single statute.
2.A slip law is the final version of a statute.
3.Codification is the process in which sections of
public laws amend, add to, or repeal the relevant
portion(s) of the United States Code.
4.The president’s veto of a bill may be overridden by
a majority of both houses.
Anatomy of a Statute
The United States Code
The United States Code (USC)
• Is issued every six years
• Is updated annually
• Is arranged into 50 titles
• References the Statutes at Large citation
• Includes historical notes and cross-references to related
sections
• Includes an index, a table of acts cited by popular name, and
conversion tables that allow you to move between the present
version and earlier versions of the Code.
The United States Code
• The United States Code (USC), as published by
the government, has several drawbacks
– There is a publication lag, especially for the annual
supplement.
– There are no references to interpreting case law.
The meaning of a statute is often unclear and must be
interpreted by the courts. The decisions of the courts
often become more important sources of law than the
text of the statutes.
The United States Code Annotated (USCA)
The USCA contains the text and features of the
statute as they appear in the USC, plus:
•
•
•
•
•
References to legislative history, and federal regulations
References to the West Key Number System
References to law review and journal commentaries
Library references
References to texts and treatises
• Notes of Decisions (annotations)
United States Code Annotated
Citation:
18 USCA 241
Text
The text of the statute in the USCA is unchanged from how it
appears in the USC, as published by the Government Printing
Office.
United States Code Annotated
Credits (Text Amendments)
are past session laws that
Enacted or modified the
statute.
Historical and Statutory
Notes (Editor’s Notes) are
Compiled by Thomson Reuters
attorney-editors and give a
more detailed legislative
history of the statute.
United States Code Annotated
• Cross-references
(to other USCA
sections)
• Law review and
journal
commentaries
• Library References
(to many secondary
sources)
• References to topic
and key numbers
• Texts and treatises
United States Code Annotated
Index to the Notes
of Decisions
(annotations).
Subjects are listed
alphabetically
United States Code Annotated
• Notes of Decisions
(annotations) are
summaries of how
courts have interpreted
the statute with links to
the case law.
• Notes of Decisions
are the headnotes from
cases that Thomson
Reuters attorneyeditors have identified
as significantly
interpreting or applying
the statute.
Question
Notes of decisions are also called:
1. Headings
2. Annotations
3. Credits
4. Statutory history
Question
Notes of decisions are also called:
1. Headings
2. Annotations
3. Credits
4. Statutory history
Statutory Research:
In Print and Online
Print Research Aids
An alphabetical General Index aids you in finding
relevant statute sections.
-- The index has “access words” that crossreference formal index headings.
-- The Index references the relevant title(s)
and section(s) (statutes).
The Popular Name Table, in the last index volume,
helps determine where a public law was codified.
Sarah Jones has finished law school, passed the
bar and found a job with a legal aid service.
Four years of college and three years of law
school have run her student loan debt to well
over $100,000 and her salary will never stretch
to make the payments on that amount.
Sarah is considering filing for bankruptcy.
Could this measure solve Sarah’s problem?
Finding Relevant Statutes Online: The Find Service
There are several different but effective ways to find
the Exceptions to Discharge in Bankruptcy statute
(section).
If Sarah knows the citation of the discharge statute,
she can simply type it in the Find this document by
citation: text box on the Law School page or click the
Find link on the toolbar.
11 USCA 523
Find a State Statute by Citation
You can type the following in the Find this document by
citation: text box:
-- Enter xx st nnn.nn (where xx stands for the state’s twoletter postal abbreviation and nnn.nn stands for the citation
number)
-- Example: mn st 313.01 (do not include paragraph letter or
number, as in 313.01(a)(4))
For code states or other states with irregular numbering, simply
type xx st in the Find this document by citation: textbox.
See next screen.
State Statute Template
A template for the state’s
statutes is displayed.
Just type in the statute
number in the
appropriate code’s text
box.
Click Go beside the text
box and you will retrieve
the state statute, in this
case, Texas Agricultural
Code, section 41.002.
Next and Previous Section
If Sarah isn’t sure she has retrieved the correct
section but believes she is very close to it, she
could click on the Next Section or Previous
Section links at the top of the statute.
Next and Previous Section
Now Sarah will be viewing 11 USCA 524.
The Next Section and Previous Section links at
the top of the right frame allow her to move forward
or backward, statute by statute just as if she were
paging through the statutes in print.
Table of Contents for Statutes
Sarah could access the Table of Contents service
which is available for each statutory database on
Westlaw and open it to the desired section.
The Table of Contents service is also a great way for
Sarah to browse the sections around the desired statute
to see if any have relevance to her situation.
TOC link on
Links for Tab
A Caption and Prelim Field Search
• If Sarah knows that Title 11 is the bankruptcy title
and she needs the exceptions to discharge statute,
the following field restricted search using terms and
connectors would be effective:
ca,pr(“title 11” & exception)
• This search retrieves 11 USCA 523. The terms
can be in either the caption or the prelim fields.
Caption (ca)
Field
Prelim (pr)
Field
A Search for a Key Number Case Law Digest Field
• Sarah could try a Terms and
Connector search in the
digest field of a case law
database. (Here we will use
the ALLFEDS database.)
• For example:
• di(discharge! /p “student
loan”)
• This search yields many
cases and several relevant
key numbers related to 11
USCA 523.
• Sarah notices that one
headnote states that undue
hardship is the only basis for
discharging student loans.
• The key number
51K3351.10(1) assigned to this
headnote links to other cases
discussing the same point of
law. Sarah will have to
examine these cases to
determine if her situation can
be considered a “hardship.”
• There are also references to
the controlling statute(s).
A Natural Language Search
• Search could run a Natural Language search,
which can be very effective in annotated statute
database, in that.
• The looser structure of a natural language search
will often be more successful than a terms and
connectors search in capturing the unpredictable
language of a statute.
• The search:
can student loans be discharged in bankruptcy
Retrieves the Notes of Decisions shown on the
next slide.
11 USCA 523 is the first document displayed. The “best” portion of the
statute is in the annotations in the familiar language of the courts. Sarah
retrieved this document even though the text of the statute does not mention
a student loan exception to discharge in bankruptcy. (The text of the
statute uses “educational benefit overpayment or loan”.)
Using Key Search to Find Statutes and Cases
• If Sarah is unfamiliar with both the language of the law and key
numbers, the KeySearch service could be the place to start research.
• You can access KeySearch from anywhere on Westlaw by clicking
KeyNumbers and then clicking KeySearch on the toolbar.
Using Key Search to Find Statutes and Cases
• KeySearch
divides the law
into widely
recognized
areas of the
law.
• Bankruptcy is
one such area
KeySearch
• The opened Bankruptcy folder reveals
the bankruptcy subtopics, one of which
is Discharge.
• If Sarah opens the Discharge subfolder
and she will find Educational Loans.
• Sarah selects the All Federal Cases (ALLFEDS) database.
• She could click the View/Edit Full Query link to see the preformulated query.
• Notice that the query is a combination of words and key
numbers.
• Sarah could add additional terms.
• This is one of the
cases retrieved
from the ALLFEDS
database and it
talks about
discharging
student loans on
the basis of
hardship.
• There is also a
reference to the
discharge statute.
Updating Statutory
Research
Verifying that Statutory Research Is Current
• Sarah has found the statute and interpreting case
law that says that student loans are not discharged
in bankruptcy.
• She has found cases that state the only exception
is on the basis of undue hardship.
• What if the statute has been recently amended or
repealed or case interpretation of the statute has
changed?
Official Print Updates
Print updates
• Slip laws are individually printed and sent to all
U.S. government depository libraries.
• The Statutes at Large is the earliest official
compilation of all laws passed at the end of each
session of Congress.
– Published in chronological order
– No general index
– Publication lags about two years behind the enactment of
the public laws
Most Current Print and Westlaw Updates
• U.S. Code Congressional and Administrative
News (USCCAN) issues monthly pamphlets.
• After each session, the monthly USCCAN
pamphlets are reissued in a bound volume.
• Laws are in the US-PL (United States Public Laws)
database on Westlaw within hours of passage.
• XX-LEGIS is the identifier for the state public law
databases on Westlaw. State laws go online as
soon as they are received by West.
United States Code Annotated Updates
Always check in the following print publications to
determine the current law:
• Cumulative pocket parts
• Interim pamphlets and statutory supplements that
include the public law changes to the code and
recent notes of decisions from cases that have
construed the statute since the last supplement
was published.
Updated a Statute Online: KeyCite for Statutes
Use
KeyCite History to determine whether the statute is
good law
KeyCite History for Statutes
Flags Show the Status of the Statute
A red flag means
that the statute
has been
• Recently
amended
• Repealed
• Ruled
unconstitutional
• Preempted
All or a portion of the statute may no longer be good law.
This statute has been declared unconstitutional or preempted.
Click the red flag or History on the Links for tab to
see that this statute has been held unconstitutional
by several courts.
KeyCite History
A yellow flag means
that the statute
– Has pending
legislation
– Has been
renumbered
– Has been
transferred
– Contains an
editor’s amendment
note.
The statute is good law for should be monitored for changes.
Both KeyCite History and Citing References link to display Pending Legislation
that might affect the statute.
Click the yellow flag on the Links for tab to display this
statute’s Proposed Legislation.
Note that you can link to the bills that are pending legislation.
KeyCite History for Statutes includes
• Updating documents (recently passed public laws
that have amended or repealed the statute)
• Pending legislation that may affect the statute
• Credits (citations to past public laws that have
enacted, amended or renumbered a statute)
• Historical and statutory notes that describe the
legislative changes that have affected the statute.
• Cases that have held that the statute is
unconstitutional
Question
A red flag on a statute can mean that the statute
1.Has been declared unconstitutional
2.Has pending legislation
3.Has been amended
4.Both 1 and 3
Question
A red flag on a statute can mean that the statute
1.Has been declared unconstitutional
2.Has pending legislation
3.Has been amended
4.Both 1 and 3
Expanding Statutory
Research
Expanding Statutory Research
• KeyCite Citing References
• Case law that has interpreted or applied the statute
– Annotations (Notes of Decision)
• Legislative History
• Secondary Sources
– American Law Reports
– American Jurisprudence 2d
Key Citing References
Many USCA sections have many citing references. In the right
frame are some of the 25,756+ citing references to 11
U.S.C.A. 523.
Expanding Research Using KeyCite
KeyCite Citing References consists of citations to legal
documents that discuss or mention the statute.
Citing references include:
• Pending legislation
• Notes of Decisions (Annotations)
• Cases on Westlaw that do not appear in notes of
decisions
• Administrative materials (includes agency decisions)
• Secondary sources, such as ALR® articles, Am Jur
2d® sections, law reviews, and treatises
• Briefs
Limiting Key Citing References
• 11 USCA 523 (the Exceptions to Discharge statute) has 25,756
citing references.
• Click the Limit KeyCite Display button near the bottom of the
screen to limit the citing references to the ones of most use to you.
You can limit citation
results by any number
or combination of:
• Notes of Decisions
•
(by sub-topic)
• Locate terms
• Jurisdiction
•
Date
• Document type
Select the desired criteria and click Apply.
The original 25,756 citing documents have been reduced to
the 12 documents that meet the criteria we specified.
Expanding Research Using Notes of Decision
• Many statutes are obscurely worded and must be interpreted
by case law.
• Notes of Decisions (or annotations) are headnotes of cases
that significantly interpret or apply the statute.
• Case law compares the language of the statute with the
language of other statutes, reconciles language within the
statute, and explores legislative history concerning the statute
to discover the intent of the legislature.
• The language of the case law often becomes more useful for
the researcher than the language of the statute.
Notes of Decisions
• Notes of decisions can be accessed by clicking the Notes of
Decisions link on the Links for tab when viewing a statute.
• Notes of Decisions are preceded by a main index and, if needed,
subdivision indexes.
• Each subdivision deals with one topic of interpretation of the statute
by the courts.
Print Notes of Decisions
• As in the online Notes of
Decisions, the print
Notes of Decisions are
the last portion of the
annotated statute format.
• The Notes of Decisions
for some statutes may be
hundreds of pages long.
Legislative History
Because so many statutes are obscurely worded:
• courts often look to the legislative history of a statute to
determine the intent of the legislators.
• debates in Congress or congressional committees, early
drafts of the bill, testimony of experts, amendments to the
language of the proposed statute, etc., often reveal the intent
of the legislature.
Committee reports provide the most definitive evidence of
legislative intent.
Earliest Legislative History
Legislative history may include documents that exist even
before a bill is enacted.
• Presidential recommendations.
• Congressional and committee hearings in sessions in which
the bill was discussed but not passed.
• Agency memorandum
You should not limit your research only to the
legislative session in which the bill was enacted.
Legislative History in Annotated Statutes
• You can access Legislative History directly from the link on
the Links for tab in the left frame. Click Text Amendments,
also called Credits. They are the public laws that created and
amended the statute.
You can also link to the Editor’s Notes, also called the Historical and Statutory
Notes, that follow each USCA section. Editor’s Notes give more detailed
information regarding the legislative history of the statute, including House and
Senate Reports, Committee Reports and explanations of the change in language
from one report or public law to the next.
Early Legislative History on Westlaw
• Early congressional hearings and testimony can be found in
several databases on Westlaw, including USTESTIMONY,
USPOLTRANS, CQ-NEWS, BNA-TRACK and APN-HO.
• Presidential messages can be found in the PRES-DAILY,
USPOLTRANS, USCCAN, BNA-PRSCAL, and CQ-NEWS
databases on Westlaw.
• Committee Reports, the most definitive evidence of legislative
intent, can be found in the LH database.
Discussion and Testimony Regarding a Bill
Discussions/debates regarding a federal bill can be found in
– the Congressional Record in print and on Westlaw in the
CR database
– United States Code Congressional & Administrative News
(USCCAN) in print and in the USCCAN database on
Westlaw
Legislative History of Modification of Bill
Language of bills as they are modified in the legislative process
can be found in:
• microfiche in government depositories, including many
law libraries
• materials from the clerk of the legislature
• Congressional Record and USCCAN in print
• CR, USCCAN, CONG-BILLTXT, and LH federal
databases on Westlaw
• XX-BILLTXT (where XX is state’s two-letter postal
abbreviation) databases on Westlaw.
The Current Status of a Bill
The status of a bill can be found in
•
•
Federal materials
–
print status tables
–
US-BILLTRK (United States Bill Tracking)
State materials
–
XX-BILLTRK (where XX is the two-letter postal
abbreviation of the state) databases on Westlaw
Under Add a Tab
link above the
toolbar, you
can set up a
Legislative
History tab
page.
When you click any step in the
legislative process, a search
screen is displayed showing
databases where that material
can be found.
Secondary Sources
• Secondary sources are analytical materials that comment on,
explain, and analyze a wide range of legal topics.
• Secondary-source materials are prepared by legal experts in
a non-litigious context.
• Most contain a detailed discussion of the legal topic.
• Most are carefully researched.
Most include references to relevant
cases and statutes and other
secondary sources.
Secondary Sources
• The following are some of the secondary sources that are
available in print and on Westlaw that can be used to expand
your statutory research.
• American Law Reports (ALR) – ALR database
• American Jurisprudence (Am Jur 2d) – AMJUR database
• Law review articles – JLR (Journals and Law Reviews)
database
• Restatements – REST databases
• West’s Digests – -HN is suffix for digest (headnote)
databases, e.g., MN-HN, ALLFEDS-HN
This is a portion of an
ALR article discussing
the legislative history
of 11 USCA 523 in
reference to whether
student loans can be
discharged in
bankruptcy.
The same ALR article
could have been retrieved
using the ALR link on the
Links for tab while
viewing the statute in the
right frame.
One of several American Jurisprudence sections that
discuss whether loans can be discharged in bankruptcy.
This section discusses exceptions to the student loan
exception of discharge of debt in bankruptcy.
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