Transcript Document

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
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Banking (FDIC, OCC)
Environment (EPA)
Health (HCFA, FDA)
Labor Law (NLRB, OSHA)
Tax (IRS)
Securities (SEC)
Utilities (FCC, FERC)
U.S. Legal System
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Federalism
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two levels of government (federal and
state)
Separation of powers
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ensure that none of 3 branches of
government usurps powers of other
branches
Primary & Secondary Authority
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Primary
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Statement of "the law" from bodies with
law-making authority
Secondary
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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
Judicial
Executive
Statutes
Cases
Regulations
Administrative Decisions
Stat., USC
RCW
US, Fed 3d
P3d, Wash.
FR, CFR
WAC
How do Sources of Law Interact?
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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
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Federal Statute
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Endangered Species Act
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Pub.L.No. 93-205
87 Stat. 884 link
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16 U.S.C. § 1531 et seq. (2000)
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16 U.S.C. § 1538 Prohibited Acts link
Federal Regulations
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Importation, Transportation and Exportation of Wildlife,
50 C.F.R. Part 14 (2004) link
50 C.F.R. § 14.17 (2004): “Personally Owned Pet Birds” link
Agency? US Fish & Wildlife Service within the Dept. of the
Interior.
More Legal Citations
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Federal Cases
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Tennessee Valley Authority v. Hill, 437
U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117
(1978). link
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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
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What type of law might govern this
issue?
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Which jurisdiction?
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statutes? regulations? cases?
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?
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U.S. Government Manual
. 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.).
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1)
2)
3)
Notice of proposed rule
Comment period
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)
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Rules &
regulations in
force
Published
annually
Index & finding
tables
Federal Register (FR)
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Daily
Proposed regs
New regs
Presidential
documents
 Executive orders
 Proclamations
Crystal Ball
Semiannual
Regulatory
Agenda
 Federal
Register
 Apr & Oct
How to Find Regulations?
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Code of Federal Regulations Index
(CFR & USCS)
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Parallel Table of Authorities and Rules (in
CFR Index volume)(statute → regulation
table)
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Federal Register Index
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Annotated Codes
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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
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Updating Regulations
CFR
Date on cover
Federal Register
Each daily issue from
end of last month to today
List of Sections
Affected (LSA)
Most recent monthly issue
Federal Register
Last day of prior month
Administrative Decisions
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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
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Endangered and Threatened Species
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Fish, Wildlife and Plants
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Lists, 50 CFR 17
50 CFR 17
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Part 17 Table of Contents and 50 CFR
§17.1
50 CFR § 17.3 Definitions
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“Authentic native articles of handicragts
and clothing”
50 CFR § 17.40 Special Rules –
mammals.
Any changes to 50 CFR Part § 17.3?
Updating Regulations
1)
2)
CFR volume (date on cover of volume
containing Title 50 of CFR = Oct. 1,
2004)[update from oct.1, 2004 to today!]
List of Sections Affected (LSA)(most
recent monthly issue = July
2005)[includes changes from Oct. 1, 2004
to July 29, 2005!]
1)
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.
1)
4)
Proposed Rule affecting 50 CFR 17: found on
page 46387 of Federal Register in August 2005.
Federal Register (most recent date of
current month) – “CFR Parts Affected
During September” Table at end. [Library
only has up to Sept. 13th in print!]
Final Rule Example
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
Cyfluthrin; Pesticide Tolerance
ACTION: Final rule
70 FR 53944 (Sept. 13, 2005)
Secondary Sources
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Marine Mammal Protection Act
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US Code cite?
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Regulations related to it?
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Use Popular Names Table
USCS or USCA
Encyclopedia entries explaining it?
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AmJur or CJS
Secondary Sources – cont’d
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ALR “article” about it?
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Law review article on it?
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Use reference from USCS or ALR Index
Use reference from USCS or online Index
(called LegalTrac)
Treatise or Hornbook or Nutshell or book
from the Law Library
Thanks for Listening
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