Chapter 3 - Constitutions, Statutes, Administrative Law, and Court Rules

In pari materia

A canon of construction that provides that statutes dealing with the same subject should be interpreted consistently.

The United States Code Congressional and Administrative News (USCCAN), published by West Publishing

A monthly softbound pamphlet that contains all of the public laws passed in the prior month. Contains a cumulative index for the session and tables to locate by popular name the United States Code section affected.

Code of Federal Regulations

A reference work that compiles regulations of all agencies in a series of volumes

Plain Meaning Rule

A rule of interpretation which states that words in a contract should be given their ordinary meaning.

The General Index

A softbound, multivolume set that is updated annually. It consists of descriptive words or phrases, arranged alphabetically, with headings and subheadings. Following each subheading are the title and section number(s) of the relevant statutory provision.

Narrative summary legal

A story about the parties, narrated in the past tense, gives way to a story about the law, narrated in the present tense. The litigants' story is assimilated to the legal one, meaning that the legal result resolves their conflict, but also that their conflict may become an event in the legal story

Holographic Will

A will written entirely by the testator with his own hand and not witnesses

For Example Fourth Amendment Equal Protection Clause Article 1, Section 1

According to the Bluebook, Rule 8 parts of the United States Constitution are capitalized when discussed in textual sentences.

Update Your Research

After you locate a statute, check the pocket parts and supplementary pamphlets to ensure the statute published in the main volume has not been amended or repealed. Also check the annotations to locate new case law that may affect the interpretation of the statute. Shepard's Citations provides updates to state and federal statutes. The process of updating research through the use of Shepard's Citations is called "Shepardizing."

Ejusdem generis rule

"of the same genus or class." As a canon of construction, it means that whenever a statute contains a specific list followed by a general term, the general term is interpreted to be limited to other things of the same class or kind as those in the list.

Expressio unius est exclusio alterius

"the expression of one excludes all others."

Three ways in which a written will can be revoked

1. By a subsequent will or codicil executed by the testator, with the intent to revoke the prior will 2.By a writing intended to revoke the will, executed in the same manner as a will is required to be executed 3. By the testator or some person in the testator's presence and by the testator's direction canceling or destroying the will with the intent to revoke

Read the statute carefully several times.

1. Does the statute set a standard, or merely provide factors that must be considered? 2. Does the statute set out more than one rule or test? Are other rules or tests available? Are there exceptions to the rule or test? 3. All the words and punctuation have meaning. Always check the definitions section for the meaning of a term. If there is no definitions section, consult case law, a legal dictionary, or Words and Phrases. 4. Do not assume you know what a term means. Your assumption may be wrong. A legal term may have several meanings, some of which may be unknown to you.

Two major considerations and guidelines when engaged in statutory analysis:

1. Legislative history 2. Canons of construction

USCS & USCA - Differences

1. The U.S.C.A. includes more court decisions in the "Notes of Decisions" section of the annotations. The U.S.C.S. tends to be more selective and reference only the more significant cases. 2. The "Research Guide" section of the U.S.C.S. annotations is more comprehensive than the reference" section of the U.S.C.A., in that it includes more references to research sources. 3. The supplements to the U.S.C.S., called the Cumulative Later Case and Statutory Service, are cumulative. Therefore, you need check only the latest supplement. The U.S.C.S. also publishes a monthly pamphlet called U.S.C.S. Advance, which includes new public laws, presidential proclamations, and executive orders. 4. In the U.S.C.A., the topics covered in the "Notes to the Decisions" are arranged alphabetically; in the U.S.C.S., the "Interpretive Notes and Decisions" are arranged according to topic.

For a revocation to occur under subsection (c), the following elements must be met

1. The testator or some person a. In the presence of the testator, and b. By the testator's direction 2. Cancels or destroys the will 3. With the intent to revoke

USCS & USCA - Similarities

1. They are organized in the same way. 2. They have general indexes, popular name tables, and conversion tables. 3. They are annotated with the history of the statute, direct you to other research sources, and briefly summarize cases that have construed the statute. 4. They are similarly updated annually with pocket parts for each volume and supplemental pamphlets

The statute requires an open meeting when the following elements are present

1. Two or more board members 2. Meet at other than a chance or social gathering where discussion of public business is not the central purpose 3. Public business is discussed or action may be or is taken.

The only short-form citation appropriate for use with constitutional citations

Id If the use of Id. is not appropriate, the full citation must be given.

Breaking the statute down into its elements

Identify and list the elements that must be met for the statute to apply. This is necessary because you must know what the statutory elements are before you can proceed to step 3 and apply them to the legal problem or issue raised by the client's facts.

The beginning step of all research, including statutory research

Identify what you are looking for as precisely and narrowly as possible. Define your research question as specifically, and in as concise terms, as possible (keep focused).

Criminal statutes

Narrowly interpreted. It is important to remember that, as with all matters involving case law, when a court interprets a statute, the principle of stare decisis applies. A court will follow the interpretation previously adopted unless the previous interpretation is overruled and a new interpretation is adopted

The United States Code (U.S.C.)

Organizes all of the laws contained in the Statutes at Large by subject into 52 categories called titles, with each title covering a different area of law - "Official" code of the laws of the United States. Unannotated

Federal Register

Published daily by the United States Government Printing Office (GPO). All proposed new regulations, amended regulations, interim and final regulations are published in the Federal Register. It also contains summaries of regulations, effective dates, notices of hearings on proposed regulations, and persons to contact for further information. Presidential documents, such as executive orders, are included in the Federal Register.

The last antecedent rule states

Qualifying words and phrases apply to the words or phrase immediately preceding and do not extend to other more remote words or phrases

Court rules

Regulate the conduct of matters brought before the court. They range in the subjects they cover from the technical, such as the format of pleadings, to the substantive, such as grounds for dismissal or when an appeal must be filed. Each jurisdiction has the authority to promulgate its own set of rules, although many states' rules follow in substantial part the Federal Rules of Civil and Criminal Procedure.

These numbers

Represent the organizational structure, or statutory scheme, of the particular statutory code.

Citing a statute obtained from a code in an electronic database, the Bluebook Rule 12.5

Requires that the name of the database and the currency of the database be provided parenthetically. The name of the publisher, editor, or compiler must also be provided in the parenthetical unless the publisher, editor, or compiler is the government or is acting at the direction of the government. Electronic from nongovernmental source: 18 U.S.C.A. § 1956 (Westlaw through P.L. 114-5

Canons of construction

Rules and guidelines the courts use when interpreting statutes. A fundamental rule of construction that determines when canons of construction are applied by a court is the plain meaning rule, which governs when the canons of construction apply. If the meaning is clear on its face, there is no room for interpretation and a court will not apply the canons of construction.

The substantive sections

Set forth the substance of the law; may include sections that provide remedies, such as fines or imprisonment in criminal cases.

Common Terminology

Shall, may, and, and or - The term shall makes the duty imposed mandatory—it must be done. The term may leaves the duty optional. If and is used, all the conditions or listed items are required. If the term or is used, only one of the conditions or listed items is required.

Analyze the Statute

Some statutes are lengthy and difficult to understand. You may need to check the library references to locate other library sources that explain and interpret the statute. It may be necessary to make a chart to assist you in understanding the specific provisions and operation of a statute. Step 2 involves two parts: 1. Read the statute. 2. Identify the statutory elements: What does the statute specifically declare, require, or prohibit?

Scope Section

Some statutes have sections that state specifically what is covered and not covered by the statute.

Intended remedy

Statutes are to be interpreted in a manner that furthers the intended legislative remedy.

Summary of the Statutory Analysis Process

Step 1: Determine if the statute applies in any way to the legal problem or issue. Step 2: Carefully read the statute and identify the required elements. Step 3: Compare or match the required elements to the facts of the problem and determine how the statute applies. In addition to this three-step approach, there are other general considerations to keep in mind when analyzing statutory law.

Sections and Paragraphs

The following is a summary of citation rules when enacted laws are organized by sections or paragraphs: 1. Insert a space before and after the section (§) or paragraph (¶) symbol. 2. Do not use "at" when referring to a paragraph or section 3. Correct: Id. § 2111 Incorrect: Id. at § 2111

Substance of the law

The text of the law; establish the rights and duties of those governed by the statute: that which is required, prohibited, or allowed

United States Code Annotated (U.S.C.A.) Westlaw United States Code Service (U.S.C.S.)

The two privately published annotated codes

Entire Context

The words, phrases, and subsections of a statute are to be interpreted in the context of the entire statute

Print versus Electronic Databases

When citing a print source be mindful of whether material is taken from main volumes of supplemental volumes. When the citation is to material from supplemental volumes, the Bluebook Rules 3.1 and 12.3 require the supplement and its date be identified in the parenthetical. Print official: 18 U.S.C. § 510(b) (Supp. I 1983) Print unofficial: 12 U.S.C.S. § 1710 (LexisNexis 1993 & Supp. 2004)

Ordinances

laws usually passed by local governing bodies, such as city councils and county commissions, and thus are statutory law.

Code of Federal Regulations (CFR)

An annually revised codification of the general and permanent rules published in the Federal Register by executive departments and agencies of the Federal Government. It is divided into 50 titles that represent broad areas subject to Federal regulation. Each title is divided into chapters, subchapters, parts, subparts, sections and paragraphs. 45 CFR Part 46 is the part covering the protection of human subjects.

Constitutionality Statutes

Assumed to be constitutional and should be construed in a manner that preserves their constitutionality, if possible.

The United States Statutes at Large

At the end of each session of Congress, the slip laws are placed in chronological order (according to the date the law was passed) and published in volumes. The Statutes at Large is the official compilation of the laws of each session of Congress. Because the laws are placed in chronological order, it is difficult, if not impossible, to conduct research using the Statutes at Large.

Publication

Communication to a third party by any means. All punctuation counts. If you cannot understand how to read a statute, consult a secondary source, such as a treatise or legal encyclopedia. Review the entire statute (all sections) to determine if other sections in some way affect or relate to the section you are researching.

U.S.C.A.

Consists of approximately 200 volumes and includes the General Index. In the front of each volume is a list of the 52 titles of the U.S.C.

Government Printing Office (GPO) and commercial publishers such as Commerce Clearing House (CCH) and the Bureau of National Affairs (BNA).

Consult administrative agency or court decisions for an interpretation of a rule or regulation.

Statutory Elements

Certain conditions established by the statute must be met.

Annotations

Dates of enactment or amendment Historical and Statutory Notes Official comments on the section Cross References. This information provides cross-references to other related statutes Library References and Research References Notes of Decisions

definitions sections

Defining terms used in the statute.

USCS & USCA - State Codes Similarities

Each set has a general index, and some sets have a separate index following each title. Some statutes have popular name tables and conversion tables that allow you to locate statutes that have been renumbered or repealed. The statutes are organized by subject, with each subject title being subdivided into chapters and so on. The state constitution with annotations is included in the code. State codes are usually updated annually by some form of supplement. These may be pocket parts inserted in the statutory volume or separate pamphlets. State statutes are annotated. The annotations include the history of the section, cross-references to other statutes, research guides, and notes to court decisions.

Session Laws and Slip Laws

If a citation is not available in the official or unofficial codes, then it is appropriate to cite the session law. Citation format for session laws can be found in Rule 12.4 of the Bluebook and Rules 14.7 to 14.13 in the ALWD Guide. Citation to session or slip laws may be necessary when a recently passed law has not been published in the official or unofficial codes. As with state statutes, the form for session laws varies from state to state. The abbreviations and formats for session laws are presented in Table TI of the Bluebook and Appendix 1 of the ALWD Guide

Parallel Table of Authorities and Rules

If you know the number of the U.S.C. enabling statute, you may locate the code title

Purpose Clause

Includes the purpose the legislative body intended to accomplish when drafting the statute. It is helpful in determining the legislative intent, which is important in conducting statutory analysis.

the ^ symbol means

Indicating where spaces are placed, followed by the example without the space symbol.

Acts or Statutes

Laws passed by Congress or state legislatures

CFR Index and Finding Aids volume

Locate regulations in the C.F.R. by subject matter or agency

Short Citation Format

Subsequent cites may be in short citation format. If the use of Id. is appropriate, it is the preferred short form. Otherwise the short-form citation involves use of the numbers associated with the statutory scheme—in other words, the abbreviation for the statutory code and the parenthetical information is left off of the citation. The exception to this is when the statutory code cited is from an electronic database; then the name of the database must be provided in a parenthetical. Full Citation: 15 U.S.C. § 7 (1988 & Supp. 2002) Short Citation(s): 15 U.S.C. § 7 or Id. Full Citation: Minn. Stat. § 519 (1990) Short Citation(s): § 519 or Id.

Statutes are often referred to by a popular name

Such as the Americans with Disabilities Act or the Freedom of Information Act. If you know a statute's popular name but do not know the citation, a quick way to locate the statute is through the popular name table found in the last volume of the General Index

Some laws have popular names

Such as the Good Samaritan Act or the Truth in Lending Act. Many state statutes and the U.S.C.A. and U.S.C.S. have popular name tables listing in alphabetical order the popular names and citation. The tables are usually located with the table of contents volume(s) or as a separate volume.

Analysis Process

The analysis of enacted law and court rules is the process of determining if a law applies, how it applies, and the effect of that application to a specific fact situation. When analyzing a legal problem or addressing an issue governed by constitutional, statutory, or administrative regulation, or a court rule, it is helpful to have an approach.

Table of Contents

The beginning of each title that lists the name and number of the chapters within the title. At the beginning of each chapter, a table of contents typically lists the statutory section number and name of each section. If you know the number of the title you are looking for, you can go directly to the volume and scan the table to quickly locate a statute.

Administrative Law

The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.

Particular purpose

The case law indicates that the term refers to a unique and specific purpose for which the goods are required that is clearly and specifically communicated by the buyer to the seller.

Citing Administrative Law

The citation format for administrative law can be found in Bluepages B14 and Rule 14 of the Bluebook and Rule 19 of the ALDW Guide. The citation form for citation to the Code of Federal Regulations and Federal Register are the same in both manuals. Generally citations to the Code of Federal Regulations are to title, section, part and year, citing the most recent edition.

Citing Court Rules

The citation format for court rules can be found in Bluepages B12 and Rule 12 of the Bluebook and Rule 17 of the ALWD Guide. The citation format is the same in both guides. When citing rules no longer in force, indicate the repeal parenthetically Federal Rules of Civil Procedure (govt. publication): Fed. R. Civ. P. 4 (2015) Federal Rules of Evidence (nongovt. publication): Fed. R. Evid. 407 (West 2015) State Rule of Criminal Procedure: Ariz. R. Crim. P. 45 (2015)

Slip law

The full text of each law is published separately by the United States Government Printing Office (GPO). Slip laws are available at law libraries and at public libraries that are designated as United States Government Depository Libraries. Slip laws are also available electronically through the GPO's Federal Digital System (FDsys) website (www.gpo.gov).

The correct index entry

The index will list the appropriate title and section. With that information, you can locate statutes in the appropriate statutory volume. Most statutes are arranged by title, and the titles covered in each volume are indicated on the spine.

Determine if the Statute Applies

The law, if any, covers the legal issue raised by the client's fact situation. The first task, then, is to determine which statute or statutes govern the question. This step involves two parts: 1. Locate all possible applicable statutes. 2. Determine which statutes apply. 3. Research is thorough and complete. 4. Have explored all areas of law

Public law number

The number reflects the order in which the law was passed and the session of Congress. For example, Public Law No. 107-35 was the 35th law passed by the 107th session of Congress.

Statutory Scheme

The organizational structure of the statutory law that assists in determining if a particular statute is applicable to a set of facts or whether other sources, such as legislative history or case law, need to be consulted to determine the applicability of the law

Statutory Analysis

The process of determining if a statute applies, how it applies, and the effect of that application. That same process is used regarding administrative law. Due to the increase in statutory and administrative law governing legal issues, many researchers begin by governing legal issues.

Statutory research

The process of finding the statutory law that applies to a problem.

Legislative History

The record of the legislation during the enactment process before it became law. It consists of committee reports, transcripts of hearings, statements of legislators concerning the legislation, and any other material published for legislative use in regard to the legislation. The history may identify why an ambiguous term was used and what meaning the legislature intended, what the legislature intended the statute to accomplish, the general purpose of the legislation, and so on.

Section Symbol (§) and Multiple Sections

The section symbol (§) is used to indicate a section of a statute. Note, however, that you may not use the symbol to start a sentence. In such cases the word section is used. Correct: "Section 2253 of the Act provides. ..." Incorrect: "§ 2253 of the Act provides. ..."

Ethics—Competence and Diligence

There are considerations of ethics to keep in mind when conducting any type of research, whether it be on enacted law, case law, or secondary authority. Rule 1.1 of the American Bar Association's Model Rules of Professional Conduct requires that a client be provided competent representation. Rule 1.3 provides that a client be represented with diligence and promptness. These rules mean that a researcher must possess sufficient knowledge of the law and legal research to research completely the issues raised by the facts of the client's case.

Local rules of court

These rules are specific to the court and generally govern administrative matters such as the size of papers accepted, the number of copies of pleadings that must be filed with the original, and how to file electronically (e-file) if e-filing is available.

Statuatory laws pertain to

This body of law is commonly referred to as ---

Index to the Code of Federal Regulations

This commercial publication by the Congressional Information Service indexes the C.F.R. by subject and geographic information.

West's Code of Federal Regulations, General Index

This index provides access to the C.F.R. by subject matter or geographic location. Both are usually available at a law library.

The hardcover volumes of the U.S.C.A.

Updated with pocket parts that are placed in a pocket at the back of each volume. The pocket parts include any revisions to a statute and additional annotations, such as recent cases interpreting

The most common approach to locating statutes

Use the General Index. When using this approach, identify as specifically as possible the words that describe the problem. If the term you initially use is not the term used in the index, the index often will refer you to the correct term.

Identify the Statutory Elements

What does the statute specifically declare, require, or prohibit? How does the statute apply? Ask yourself, "What specific requirements must be met for the statute to apply? What are the elements?" After the elements are identified, you can determine how the statute applies.

General Rules When Citing Statutes

When citing a statute obtained from a code in an electronic database, the Bluebook Rule 12.5 requires that the name of the database and the currency of the database be provided parenthetically. The name of the publisher, editor, or compiler must also be provided in the parenthetical unless the publisher, editor, or compiler is the government or is acting at the direction of the government. Electronic from nongovernmental source: 18 U.S.C.A. § 1956 (Westlaw through P.L. 114-51)

The Bluebook dictates that when citing a constitutional provision

You must indicate in a parenthetical the publisher, editor, or compiler, unless the electronic source is a government source. You must also indicate the name of the database and the currentness of the database as provided by the database itself.

Will Revocation Statute

a. No will in writing, nor any part thereof, shall be revoked unless, with the intent to revoke, the testator: b. Executes a subsequent will or codicil, b. prepares a writing declaring an intention to revoke the same which is executed in a manner in which a will is required to be executed, or c. The testator or some person in the testator's presence and by the testator's direction ... cancels, or destroys the same with the intent to revoke.

KEY POINTS CHECKLIST: Working with Statutes

✓ When conducting research, identify the question or research terms as narrowly and concisely as possible. ✓ Always update your research—check the pocket parts and supplements to print sources or find the information on currentness when using Internet research sources to make sure that the statute has not been changed or repealed. ✓ When researching federal regulatory law, it is easier to use the Code of Federal Regulations than the Federal Register. ✓ When reviewing a statute, do not limit your focus to a specific section. Remember, a section is one part of an entire act that usually contains several statutory sections. Read a section in the context of the entire act. Be sure you are familiar with all the sections of the act; there may be another section, such as a definitions section, that affects the interpretation of the statute you are reading. ✓ When you find a statute that appears to apply, do not stop your research. In many instances, more than one statute or legislative act applies to a specific question or fact situation. ✓ Read statutes carefully and slowly. Several readings may be necessary. You may have to make a chart or diagram of the various sections and subsections of a statute to gain an understanding of the operation of the statute. ✓ All the words of a statute have meaning. If a word does not seem necessary or appears repetitive, you may have misread the statute. Read it again. Consult a secondary source that contains a discussion or interpretation of the statute. ✓ Do not assume you know the meaning of a word. Many statutory words are terms of art, loaded with meaning. Check the definitions section of the statute, case law, or a legal dictionary to ensure you give the correct meaning to a term. The plain meaning of a statute governs its statutory interpretation. If the meaning is clear, the statute is not subject to interpretation. ✓ If the statute is unclear or ambiguous, look to other sources for guidance, such as legislative history or applicable canons of construction. Are there court opinions that interpret the statute? Are there secondary sources, such as law review articles or encyclopedia sections that discuss the statute?