Class 5, April 27. 1 – 3 pm.

ADMINISTRATIVE REGULATIONS (THE FOURTH BRANCH OF GOVERNMENT)

Recall that administrative agencies are part of the Executive Branch, where the President or governor sit.  But there are so many agencies, and they produce so many regulations or rules, and also produce administrative decisions, that they are sometimes considered an entire branch of government by themselves!

3 Branches pix

 

The federal government publishes the Federal Register every business day of the year in order to announce proposed changes to federal agency rules and announce final rules after the agencies take public comment on such proposals.  That should tell us something about how often such rules are changed!  Of course, in the new Trump administration, there has been an executive order ( which slowed the agencies’ rules by requiring them to repeal two rules for each new rule they produce). E.O. 13771.  After a federal regulation becomes final, it is published again in the Code of Federal Regulations. (CFR)

FederalRegister

 

States mirror the federal structure, and titles, even.  In Massachusetts, our state agencies publish proposed and final regulations in the Massachusetts Register. After our state regulations become final, they are republished in the Code of Massachusetts Regulations (CMR). Unlike the federal government, our state does not publish an entire set of either online for free. However, you can find MOST of the CMR on the Trial Courts Library website.  But there are gaps where a few agencies have not provided the text of their regulations in digital format to the library or posted them.  You can find a printed copy in many public libraries, certainly in the Boston Public Library’s main branch, or any of the Trial Court libraries.

 

Federal agencies get their power to regulate from Congress (just as state agencies derive power to regulate from state legislatures).  Basically, the law-makers pass a law that is too complex, or sometimes, too much a political hot-potato, for them or their staff to deal with.  Imagine when Congress passed the Clean Air Act (they did, honest!).  There are all sorts of details in the law, such as setting the allowable levels of various pollutants, which require the expertise of biologists, health specialists, environmentalists and/or engineers. For example:

[What is a safe level of sulfur dioxide emission into the air? What will be the effect on humans and the environment in the long-term?]

[What would be the effect on the fish in the lakes if the coal power plants continued to emit mercury in their smoke, and rain comes from clouds formed with such smoke?]

[What will be the health effects on adults, pregnant women, their unborn babies, and children if these people eat fish from lakes where mercury-containing rain fell?]

[How much will it cost coal-fired power plants to reduce the mercury and sulfur dioxide emissions to acceptable levels, compared to the health risks? Are there feasible alternative technologies to clean the emissions or the water or fish?]

There are also political hot-button issues where it is much more convenient for legislators to pass the policy-making to the agency rather than face their constituents or donors.  You can see just from the list of questions above, how politically charged the problems of controlling air pollution can become.  And, rather than focus on data and letting that drive decisions, most politicians (and their constituents) are driven by emotions and headlines. It is much more convenient for the legislators to leave it to the agency to set limits on coal fired power plants, thus increasing the cost of electricity and possibly reducing the demand for certain types of coal. Then the legislators can blame the effects on the agency, and divert any blame from themselves.

war on coal

     This sort of double-dealing is how administrative agencies, though given the task by Congress of implementing laws that Congress itself passes, become the Congress’ whipping boy for doing their job.  Congress has a very odd and mixed relationship with the various administrative agencies!

     If you think about it, it is very odd that agencies, whose staff are NEVER voted for, end up making so much law!  This is one of the things that drives some folks crazy about how our administrative law works…  The agencies have no power to create regulations except what Congress (or state legislators) delegate to them.  There are specific sections in the law where these delegations are made, either very narrow and specific or broad and vague. But without those delegating clauses, an agency has no authority to pass a regulation at all!  Agencies also rely on these delegations to enforce the regulations.  The I.R.S. would have no authority to track down tax cheats.  The EPA would have no power to levy fines against polluters, without such delegations. State agencies, same deal!

Mass Env Police

     Agencies are required to look for public input as they move to create new regulations (sometimes just called rules).  The Administrative Procedure Act, 5 U.S.C. §553 requires federal agencies to publish notice of most proposed rules in the Federal Register, seeking input from the public, and allow a minimum of 30 days for input. The reasoning is that there needs to be SOME way for the public to have input to the law-making process since they do not vote for the agency personnel.  Also, it helps broaden the agency’s information on whatever topic.

   There are a number of places online to locate these input requests, but the last link above is probably the easiest for reading such announcements and entering your comments.  This version of the website really tries to make it fun and easy to read regulations and proposed regulations, and send comments.  You can also easily see what others have said in comments, which is interesting and can inform your own comments!

     For instance, there is a recently closed proposal for a rule to loosen the requirements for medical professionals allowed to bill Medicare for creating prosthetics and custom orthotics, which could reduce costs and make such items more widely available, so long as the quality is maintained.  This suggested regulation change received more than 5,000 comments from members of the public!  You can read them online here.

      I notice that many of the comments were posted well after the official end of the comment period. That is because agency personnel gathered input from similar source and “clumped” it for ease of processing. The dates of the individual comments are within the comment period.  Many of the comments include information in the subject line that allows you to understand something about the individual or organization commenting, so you can decide with that bit of information which of the posts might be most interesting to open. Somebody at the agency, however, had to open read and process ALL of the comments!

silence strngthen authority

      The first in the list as I read opens to show more than 50 form letters, which must have been generated by an emailed or website-posted appeal to an organization of occupational therapists. The individual letters are dated before the deadline and the collection was just posted recently after being collected as a group to post for the convenience of readers.  If you are a member of any environmental, gun rights, civil rights, etc. type of organization, you probably have received appeals to contact your legislator and various agencies in response to laws and regulations.

       The piles of “form comments” you see here are a fairly recent development.  It raises an interesting an somewhat troubling issue for administrative agencies.  They invite public input, yet the decision-making is NOT a democratic process – they are not counting comments on various sides of the issue and allowing the numbers to decide the outcome for the proposed regulation.  If you flip through the results, skipping over the collected files, you will find more informative comments which tend to alert the regulators to potential impacts, costs, or problems with the language of the proposed rule.  This is the reason for the requirement that regulators seek public input.  Occasionally, an agency will invite comment from a specialist or interested group. When I see a posting that includes “written testimony” and “supporting documents,” I tend to think that some or all of these came from invited comments. (look on the right margin of the screen, as you scroll down, in the green section, “Enhanced Content.”)

quote-and-speak-truth-unto-power-what-does-this-mean-it-means-giving-your-best-advice-to-superiors-anson-chan-217821

(see MoveOn petition with comments)

     After a proposed regulation has been posted, and the agency has received comments, and the 30 days (or longer) has passed, the agency must post a follow-up in the Federal Register, whether if it is only to withdraw the original proposal, or to post the final version of the adopted regulation.  Here, for instance, is an announcement in 2016 of final changes to the 2013 Mortgage Rules under Real Estate Settlement Procedures Act and the Truth in Lending Act.  The agency includes a link to the 9 comments received following the original proposal, comments and testing that the agency did.

     Sometimes, as you will see if you follow the link just above, you will see agencies doing research and testing in addition to simply requesting public input, before deciding on new regulations.  Agencies include staff with specialized expertise in the subject area, and they may do studies of various kinds before deciding about regulations.  When the agency decides on a final regulation, they must include information explaining WHY they decided on the final form they chose.  This may include a summary of the comments received, and which had impact on the agency decision-making.  It should not simply ignore comments, but need not address each individual comment.

 

restaurant

Restaurants are governed by many regulations

      Not many individuals realize that their lives are governed by agency rules on a daily basis.  They may read in the papers about agency regulations interfering with business, but they may never understand that these regulations affect their own lives every day.  Once in a while media will run one or two stories on regulations that benefit business. And you have only to think for a moment to see how many of the regulations that this article discussing regulations troubling restaurants often benefit you or restaurant employees! For instance, the number one headache in the linked survey of restaurant owners was the Affordable Care Act, requiring employers to provide health care to workers – and this does not directly affect restaurant consumers, it will eventually increase prices.  However, it will also benefit the workers at the restaurants and generally increase the health of the workers and reliability of the sanitation of food preparation when food handlers can affordably receive health and preventative care.

social-credit

       The number two concern was data security!  Requirements that restaurants and other vendors secure the credit card information of their patrons directly benefits those of us who want to eat out and pay with plastic.  Number three concern was dietary guidelines, which may or may not strike you as a benefit. It is interesting and somewhat entertaining to see the illustration in the article which shows the changes in guidelines over the decades!   However, menu labeling, the next concern, may be more assistance to those who eat out with dietary restrictions, or allergies.  Fifth on the list is food waste, which is a general concern for all members of society.  It is interesting to read here that increasing improvements in moving leftovers from landfills to feeding the needy originated in tax reforms!  Another tax reform of interest appears to be creating restaurant jobs for groups such as veterans, food-stamp recipients and vocational rehab trainees, who have traditionally been under-employed.  So, the article about regulations impacting restaurant owners makes a convenient check for how those same regulations impact restaurant employees and consumers as well.

      And obviously, restaurants are subject to stringent regulations on the state level governing health and sanitation. We consumers rely on these rules, enforced by inspectors, in order to know that the restaurants and food trucks we eat at are clean and reliable. In 1906, with grassroots movements and Upton Sinclair’s book The Jungle, there was passage of the Pure Foods Act. And in 1938, the Food, Drug and Cosmetic Act was passed to address shortcomings in the Pure Foods Act.

Food-Poisoning

      Clearly, regulations can be beneficial for consumers or the wider public even while they may be harsh on some businesses.  Some regulations benefit one type of business while they disadvantage another type.  It is important to know that YOU have a right to give your opinion to state and federal agencies as they promulgate regulations.  The federal rules website is probably the most convenient way to track and comment on federal proposed regulation.  You can search this site by keywords, or by agency, or look at the highlights.

     Massachusetts does not offer such a centralized posting and comments website.  The Massachusetts Register is published in print every workday with proposed state regulations, and information on how to send comments.  Just like federal agencies, Massachusetts agencies must allow at least 30 days for comments following publication of a proposed rule. The Department of  Environmental Protection (DEP) provides a pretty good interfaceDepartment of Education, has a good website for their rules, the Secretary of State issues a wide variety of notices for different types of rules, and the Department of Revenue includes announcements of proposed rules for comments.

CFR multiyr

Printed Code of Federal Regulations. An entire set is published each year, in 4 chunks, and covered with a new color, making it easier to see which are the new volumes.

     After a rule has been announced in final form in either the Federal Register or the Massachusetts (or other state) Register, it will then be fitted into the order of the Code of Federal Regulations (CFR) or the Code of Massachusetts (or other state) Regulations (CMR).

     The Code of Federal Regulations is printed in paperback, all new each year, so if you see it in print, above is what you would see.  Each year is covered in a different color. This is important and helpful because the set is updated in four chunks throughout the year.  Agencies assigned Titles 1 – 26 should have their regulations updated for the year in time to print new volumes for January 2.  But it often happens that agencies miss the deadline. Notice above that there are a few pink volumes among the new aqua blue volumes.  At least this alerts the user that they need to update the rules in the book! This is one reason most users prefer to use the e-CFR online with a service that announces how current they are!

code of Hammurabi

     Recall that “code” means it is an organized, complex body of law set in order by subject. We earlier looked at the United States Code (the federal statutes).  In all cases, you can use the fact that a code has been set in subject order to help you find what you want, and to be certain you have found all the related, relevant law that you need because they will probably sit nearby in the Code.  This is where you want to use the tables of contents at the beginnings of chapters or titles, to browse around and see the related material. You can also “back up” and get a broader view of the code.

      Keep in mind when people talk about “regulations” that, like all law, it depends on who is affected whether it’s a benefit or a burden.  And remember that politicians love to blame the agencies for unpopular law! They offload the “hot potatoes” onto the administrative agencies, even when it is THEY who passed the laws, or signed them, that gave the agencies the power to enact or enforce the regulations! It makes no sense to blame “regulations” as a class of law for problems faced by business or individuals.

hotpotato

Class 4, April 20. 1 – 3 PM

MORE ON STATUTE RESOURCES, BILL TRACKING AND POLICY INFORMATION

Recall that we looked earlier at how a bill becomes a law.  The bill is introduced into the state legislature or into Congress.  It is assigned to a committee which often holds hearings, or perhaps may table the bill, stopping its progress.  If the committee agrees to push the bill onward, it may write a committee report explaining why.  A successful bill goes to the floor of the House or Senate where there may be debate, which is published for Congress in the Congressional Record, and may even be watched live on C-Span.  State legislatures tend not to record so much, but the Massachusetts legislature publishes House and Senate Journals which summarize activity and votes. These may be viewed at the Massachusetts State Library.

800-state-house-flag

The Massachusetts State Library is inside the State House, Room 341

IF the bill passes the original chamber, it must go through the same steps in the other chamber.  If it is successful in both chambers of Congress or a state legislature, the Senate bill and House bill will vary, and there must be a Conference Committee, with members of both chambers to negotiate the final version of the bill.  That final bill goes to both chambers for a vote, and if it passes again, then it goes to the President or governor to be signed into law.  Remember that the bill may be signed OR vetoed or the President/governor may do nothing.  This last may simply allow the bill to pass into law if it happens in the middle of a session.  But at the end of a Congressional or legislative session, doing nothing is a “pocket veto” and allows the President or governor to veto the law without a showdown with the legislators since there will be no time for a veto vote!

If the bill is passed and signed into law, it is published first, on the federal level, as a “slip law,” with a Public Law number. The Public Law number is composed of the Congress number, and the consecutive number of law.  It also has a title, date, and a citation to the Statutes at Large (Stat.) volume and page number.  Below is an example, the first Public Law of the 115th Congress.  You may notice Congress’ fondness for titles that form an acronym (TALENT Act of 2017).   The bill citation is given as well, H.R. 39, a bill introduced into the House of Representatives.

H.R. 39 / Public Law 115-1
Tested Ability to Leverage Exceptional National Talent Act of 2017
(Jan. 20, 2017; 131 Stat. 3; 3 pages)

You may want to see the original text of a bill, state or federal, to know whether you would like your legislator to support or oppose it.  There are a number of places to read bills.  But some websites have extra features that are especially handy if you want to track how the bill is proceeding through the legislature or if you want to see what lobbyists are pouring money into affecting the vote! Some of these websites may also include notes on policy that may help you decide about your position, but you should certainly consider carefully when a website starts adding policy notes!  You should look carefully at WHO is behind these websites and consider whether they are pushing any particular points of view.  I have tried to select sources that present themselves as neutral, non-partisan, with missions focused on increasing citizen participation in democracy and increasing government transparency.  However, organizations can change, so evaluate the site as you use it!

 

FEDERAL RESOURCES:

no.1_blue_ribbon

GovTrack bill tracker

GovTrack.us

This is probably the very best resource for tracking federal legislation and policy, or keeping track of your Congressional representatives or Senators!

Using the list at the very top of this “ABOUT” page, you can choose to track by member of Congress, by bill, by committee or to examine voting records.  You can set up alerts so that  you are sent an email or text when changes occur in a bill you are tracking.  You can also read the short reports that this site posts.  The day I visited to create this chapter for class, there was an interesting short report explaining that it costs one and a half cents to make each penny.  And that is the reason behind the COINS bill introduced in the Senate. The U.S. Mint would cease production of pennies, relying on the existing pennies.  There is more in the report, explaining effects on other coins, including changing dollar bills to coins, and changing how nickels are produced, since they also cost more than their worth.  An interesting feature!  The report continues to present the opposing side, mostly that of the companies that benefit, zinc producers, but also the results of an unofficial poll showing that the move might be unpopular with the public.  The report ends with an analysis of the odds of passage, and a short history of similar bills.  Most successful bills have a long history of previous attempts before they finally pass!  GovTrack.us is a very useful and easy-to-use website for tracking bills.  You can get the full text of any bill mentioned with a single click.  You get the analysis, which is attributed, by name, and affiliation.  (This COINS Act article was written by Jesse Rifkin, a GovTrack staff writer).

 

Maplight

http://maplight.org/

A non-partisan, donation-based not-for profit that tracks the money in politics at the federal AND state level. Another excellent resource.  Use the About tab to read their explanation of who started the webpage and what is their mission, how they fund it. They take data from GovTrack, above, and Open Secrets, which is mentioned below, and use the data to make the connections between money and political influence more clear. This website has clear design that makes it easy to use.

 

Follow the Money

Follow the Money

https://www.followthemoney.org/

This site won a 2015 award from MacArthur Foundation for Creative and Effective Institutions. They are another nonpartisan, not for profit organization dedicated to tracking political spending and the influence of special interest groups.  The specifically track lobbyists, and contributions to political parties and specific political candidates.  They look at political expenditures.  They look at spending on the federal offices, including President as well as Congress. The data can be sorted, but you have to filter it down to your interest level.

 

The Hill

http://thehill.com/

An online newspaper focusing on Washington, D.C. legislative and regulatory news and policy.  Consistently tries for non-partisan, very up to date.

 

 

Politico

http://www.politico.com/

An online magazine covering Washington politics  and policy. Seems hard-hitting, factual, and even-handed.

 

 

US_Capitol_west_side

Congressional Research Service “Researching Current Federal Legislation and Regulations: A guide to resources for Congressional staff” (Feb. 6, 2017)

This is an accessible PDF report that you can download and keep – I recommend doing just that!  It was created for Congressional aides, but it’s available for anybody.  The report lists free government resources, though it also includes some subscription sources and a few, like the Library of Congress, that would only be available to members of Congress for these purposes.  However, you do have access to most of these materials, either over any Internet connection, or at most public or university libraries. Did you know that in order to get access to the online subscriptions of the Boston Public Library (BPL), you need only tell them that you are a resident of Massachusetts? If you already have a BPL regular library card, you do not need to get an ecard. But if you don’t have a regular card, it is more convenient to get the ecard and use their online resources than travel downtown to get the regular card!

 

 

Open Secrets Blog

https://www.opensecrets.org/

“We follow the money.  Inform, empower, advocate. Open Secrets [claims to be] the nation’s top resource for clear and unbiased information.”

 

 

sunlight disinfectant

Various tools from Sunlight Foundation

https://sunlightfoundation.com/tools/

Includes tools to measure foreign lobby influence, tracking political contributions, following the political fundraising circuit, tracking purchases of political ads, and tracking deleted tweets!

 

Federal Election Commission

http://www.fec.gov/finance/disclosure/norindsea.shtml

(after May, 2017, see it at classic.fec.gov; there will be a new design after May which may be previewed at http://beta.fec.gov)  You can search here for political contributions by individuals, groups, corporations, tribes, or PACs which must be reported by law to the FEC.  You can search for the contributor or the recipient. Not as easy to use as the non-profits, but it’s your government!

 

 

STATE BILL Tracking:

 

Natl Conf State Legis

National Conference of State Legislatures 50 State Searchable Bill Tracker

http://www.ncsl.org/research/telecommunications-and-information-technology/ncsl-50-state-searchable-bill-tracking-databases.aspx

This is a really useful tool to search for bills across multiple states by topic.  It is updated weekly.  Search by subtopics, year, status (e.g., pending, enacted, to governor, etc.) or enter keywords to identify bills.

 

 

sunlight disinfectant

Open States (from Sunlight Foundation)

https://openstates.org/

Locate your state legislators, and review their votes; locate bills, track the bill’s progress.  This is a very useful website and easy to use.

 

Map Light (states)

http://maplight.org/us-congress/legislator

 

Follow the Money

https://www.followthemoney.org/

This site won a 2015 award from MacArthur Foundation for Creative and Effective Institutions. They are another nonpartisan, not for profit organization dedicated to tracking political spending and the influence of special interest groups.  The specifically track lobbyists, and contributions to political parties and specific political candidates.  They look at political expenditures.  They do look at spending on the federal offices, including President as well as Congress.  But it appears that state and local races are the main focus only for a few states.

 

Many states have a campaign finance network or an ethics office which may have a website that can be located using Google or another web browser.

 

 

Problem – Practice

  1.  What is S. 442 (in the current, 115th Congress) about? Can you get the name?  What is the status?  (try using GovTrack.us )

 

 

 

 

2.  Look up S.J. Res. 34  (115th Congress) using Maplight.  Can you tell what it does?  Who supports it and who opposes it?  What is the status?

 

 

3.  Now, take a look at Verizon, using Maplight.  Choose Companies from the yellow tabs. At the top of the new webpage, you will see a single sentence, beneath the large heading COMPANIES, “To search for a specific company or organization click here.” Click on the highlighted words and enter < verizon > in the search box.

Spend a moment to browse down the stories that appear mentioning Verizon’s spending to lobby for bills. But you will want to select U.S. Verizon, which will probably be the top entry.

There are actually no entries right now as I research for the very quickly passed bill S.J. Res. 34, but there are news stories about the lobbying money that telecoms brought to play in D.C. asking to be relieved of the Obama-era rules on consumer privacy.  See http://abcnews.go.com/Technology/wireStory/influence-game-telecom-lobbying-muscle-kills-privacy-rules-46842668 and https://www.eff.org/deeplinks/2017/03/three-myths-telecom-industry-using-convince-congress-repeal-fccs-privacy-rules

 

 

 

4.  Interestingly, the telecom companies seem to have shot themselves in the foot.  It seems that several states are pushing laws through to replace the federal level consumer privacy rules.  See the Boston Globe article.  Illinois is close to passage of a bill.

California and Connecticut, for example, recently updated laws that restrict government access to online communications like e-mail, and New Mexico could follow soon. Last year, Nebraska and West Virginia passed laws that limit how companies can monitor employees’ social media accounts, while legislators in Hawaii, Missouri, and elsewhere are pushing similar bills for employees, as well as for students and tenants.

There are some subscription bill trackers, but you might try

National Conference of State Legislatures 50 State Searchable Bill Tracker

http://www.ncsl.org/research/telecommunications-and-information-technology/ncsl-50-state-searchable-bill-tracking-databases.aspx

This terrific search tool will help you look at all 50 states’ legislatures at once.  It has a handy “index” on the right hand side of the page, that includes “Telecommunications and Information Technology” as a main heading and “Privacy and Security” as a sub-heading under it.  Sounds like just what we want.  It turns out that the main heading is all we need. That is where they put the report on states rushing to fill the gap with Internet Privacy Legislation!  Remember that this tool is updated once a week, so it gets a bit out of date, but then is brought back up periodically and reliably because it is designed for staff of state legislators.

 

 

5.  Policy and Gossip!  Take a look at The Hill.

Drudge tweets that Bill O’Reilly is out at Fox

Did the Democrats manage to win a congressional seat in Georgia???

(outcome was not certain when I created this chapter)

 

browse the policy articles

 

 

Class 3, April 13. 1- 3 PM

HOW to START RESEARCH in U.S. (FEDERAL) QUESTIONS. EXPLORING AND BOOKMARKING LEGAL INFORMATION INSTITUTE. COMPARING AND EVALUATING LII, JUSTIA, FDSYS, AND FINDLAW.

We already discussed the structure of government, the legislature, or Congress, which produces the statutes, the judiciary or courts, which produce the case law and court rules, and the executive branch.  Under the executive branch (the presidency in the federal system), are the administrative agencies, which produce an entire set of laws called regulations, which are intended to put Congress’ laws into effect. Agencies include Bureau of Land Management, the Environmental Protection Agency, Health and Human Services and the Departments of Agriculture and Commerce.

 

LII

Cornell Legal Information Institute (LII) https://www.law.cornell.edu/  has some descriptive articles by topic. (scroll to the bottom of this page and scan the Topics)  You can browse and look at these articles which may be helpful for background information, and to get the names of major laws and occasional cases that are important in the area of law. I would not be surprised if you end up preferring the articles in Wikipedia by topic (see https://en.wikipedia.org/wiki/Main_Page ). Look at both and compare for your own taste. It is nice to have more than one “secondary” source that attempts to explain legal topics.

U.S. Code – Recommended

US_Capitol_west_side

U.S. Capitol, where Congress creates law, for the U.S. Code

LII is superior at providing full text of federal statutes, https://www.law.cornell.edu/uscode/text and the Constitution https://www.law.cornell.edu/constitution. The Code is set up so you can enter a citation into a search box, if you already know the Title and Section numbers. Or you can browse through drop down menus to reach your statute. Notice that LII also provides, in addition to the current and correct text of each statute, “Notes” which tell you when each statute was amended, portions repealed, or moved around in the Code. These notes include details such as the Public Law Number, date, and brief information on what the changes accomplished.  Sometimes, if events in your problem occurred on either side of one of these amendments, it might be very important to know about such changes!

For our test of LII, look at 15 U.S.Code §80b-8 in LII.  You can see that this is titled “General Prohibitions,” though the page does not tell you what it is about.

  1. You can see the sub-parts of the statute,
  2. Notice the tab for Notes, which show Amendments on several occasions and one Transfer of Function.
  3. You can always get a broader view in a code by backing up one step or more. So go to the top of the LII page, and click on Subchapter II, to see the table of contents and the sub-chapter title: “Investment Advisers.” It includes all of Title 15 from section 80b-1 through 80b-21.
  4. At 15 U.S. Code §80b-20, we find “Short title, This subchapter may be cited as the “Investment Advisers Act of 1940.”
  5.  LII offers us a note about how current their website is for the U.S. Code. It says today (3/17/2017) that the U.S.Code is current through Pub. L. 114-38.  If you check, you will find that the 114th Congress was for 2015-2016! Thus, there may be changes to federal statutes that are not noted in LII.

You can compare in Wikipedia by looking up the same act, https://en.wikipedia.org/wiki/Investment_Advisers_Act_of_1940.  The links in that informative article will take the reader back to LII!  But The Wikipedia article does a handy job of summarizing the act, and describing how it will affect advisors and investors. Wikipedia is nice in offering you a broad list of other articles, statutes and links that might be interesting if you wanted to read about the Investment Advisers Act. Wikipedia is a good aid, linked with LII. Be aware that occasionally, Wikipedia is vandalized, though such problems are fixed quickly.  You can always check Wikipedia by following the links at the end of articles, which will take you to original sources. But Wikipedia is helpful by summarizing and explaining in ways that make law and legal issues more understandable than many other sources.

Other federal law on LII includes:

Code of Federal Regulations (C.F.R.). Recommended

  1. These are the details that federal agencies such as the Security and Exchange Commission (S.E.C.) would put into place in order to put Congress’ statutes into effect. 17 C.F.R. 275 implements the Investment Advisers Act of 1940 (a link will open to a Government Printing Office – GPO – website, with the many parts of this complex set of regulations).  The way I found which regulation would apply this law was to use Google < regulations under investment advisers act > and I chose the GPO link after looking first at a webpage from the SEC that turned out to be a PDF of the Act rather than regulations!
    1. Knowing the citation, I can then compare the LII version of 17 CFR 275
    2. It offers a drop down menu for all the sub-sections, just as the GPO site did.
    3. The LII site offers a clean header for every regulation, and the user clicks to read the full text. It appears they draw their material from eCFR, an excellent resource from the Government Printing Office that prominently displays how current it is: http://www.ecfr.gov/cgi-bin/ECFR?page=browse
    4. The LII offers in addition an Authorities tab allowing the reader to look at the sections of the U.S. Code and any Public Laws or Statutes at Large that were authorities for the agency in passing the regulation(s).
    5. And LII offers a Rule Making Tab which allows the user to see the dates and citations for the publication of each rule, which can be useful for searchers who need to verify that a rule was properly created, or know the exact date of passage, or read the full text that accompanies the publication of a new rule.
    6. To compare, GPO provides the reader options to download each section in PDF or XML, and lays out the regulations in the same table format as LII.  GPO shows the 275 subsection in context with the larger portion of the code.  In LII, the user would have to click on the next higher code subdivision to see these entries. However, it can be confusing to see so many entries.  The user must scroll down the page to locate even the beginning of the rather large 275 sub-chapter.

 

scotus-justice_jason-speros_shutterstock-800

U.S. Supreme Court – Recommended

  1. https://www.law.cornell.edu/supremecourt/text/home

    1. Search by subject – there are helpful notes at this page explaining how their search box works.
    2. Indexed by topic, 2013 back to 1990
    3. Indexed by topic, before 1990
    4. By party name, 2013 back to 1990
    5. By party name, before 1990
    6. Browse decisions this term or this month
    7. The syllabus, or summary, the full opinion, and any concurrence or dissent may be separately downloaded in either PDF or HTML format.
    8. Collection of 631 “landmark” or historic Supreme Court decisions https://www.law.cornell.edu/supct/cases/historic.htm
      1. Arranged by topic
      2. Arranged by party name
      3. Arranged by the justice who wrote the opinion
      4. Special collections about the Amistad case, Administrative law, Copyright and Patent law

 

Federal Courts of Appeal, District Courts and Courts of Special Jurisdiction                    NOT RECOMMENDED

  1. Arranged by Circuit and time period https://www.law.cornell.edu/federal/opinions#appeals
  2. NOTE that for some of the circuits and courts the link provided above is a dead link.  It varies by circuit. LII stopped trying to maintain a search engine to cover all federal circuit court.  On March 1, 2013, LII posted this statement :
  3.  LII is discontinuing its search engine for the United States Courts of Appeal.  It has proven too difficult for us to maintain given our small staff and the absence of standard approaches across the 13 Circuit Courts of Appeal.  We simply can’t offer the service at the level of quality that our audience deserves, and are therefore discontinuing it rather than offer subpar results.We are sorry  for any disappointment or inconvenience this may cause.

    Our friends at Justia.com provide an excellent cross-cutting search of the Circuit Courts (and other Federal courts) at http://law.justia.com/cases/federal/appellate-courts/.

 

Federal Court Rules https://www.law.cornell.edu/rules Recommended

The text of the rules is laid out and includes brief notes of amendments, and then in-depth notes from the “Advisory Committee” which oversees the drafting of the rules.  These notes can be helpful in understanding the rules, and especially in understanding how changes occurred over time.

 

Justia Logo

COMPARE JUSTIA

  1. https://www.justia.com/  is the home page for this service, and allows the reader to figure out that Justia pays for the website through lawyer advertising. However, it truly does offer a worthwhile free search service
  2. http://law.justia.com/  is the home page for case law, codes federal and state
    1. http://law.justia.com/codes/   provides the U.S. Constitution and U.S. Code and all fifty states’ statutes as well. Select and click to open the law you want.
    2. http://law.justia.com/codes/us/ lets you choose from 22 years’ of the U.S. Code, from 2015 back to 1994.  Note that 2015 is the most recent code, though the webpage warns you that it may not be. You are told to visit the Government Printing Office website for a more recent version, and that “We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the US site. Please check official sources.”

 

 U.S. Code

  1. NOT RECOMMENDED for U.S. Code, unless you want an archived version. (same for Code of Federal Regulations, which has the same disclaimer)

 

Supreme Court decisions https://supreme.justia.com/  Recommended

  1. Arranged by year/volume
  2. Highlights “Recent” and “Most Read”
  3. Links to related websites
  4. Subscription for daily Justia summaries of new Supreme Court decisions
  5. Some opinions have an additional “annotation”  and a “Justia Opinion Summary” where an attorney has added explanatory notes, which are not official and not guaranteed, but may be useful in understanding the case.
  6. All or nearly all of the Supreme Court cases have a syllabus, or headnote summary, which can be helpful to quickly understand the facts and main legal issues involved. These are prepared by the court’s staff, and are somewhat official. They are not written by the justices, however, and are not legally binding.
  7. The opinion may be read in either HTML or a PDF which looks like a slip opinion. I do not see an official way to either print or download from Justia, but you may copy and paste the material.
  8. There are links on the side of the screen where you may look for the case elsewhere on the Internet:

 

 

 U.S. District Courts, Bankruptcy Courts, Courts of Appeal and Other Federal Courts – Recommended

This is where Justia outshines LII. All of the Circuit Courts of Appeals links work, despite their websites obviously being set up differently.  The reader is linked through to the official court website. Nearly all of the other court links are live and working.  Only a few of the administrative appeals links do not work.

For an example, of how different the various circuits are,  the First Circuit Court of Appeals, http://www.ca1.uscourts.gov/ allows searching court opinions http://www.ca1.uscourts.gov/opinions with a detailed form. The Sixth Circuit also allows searching opinions with a form, but with a different, simpler, form. And the Eighth Circuit has a different form, again, http://media.ca8.uscourts.gov/cgi-bin/opinions.cgi. specially requiring the user to specify how old the decision is. And in the Fifth Circuit, searching is much more circumscribed, both by date, and being limited to search docket number or “title.”  You don’t get the full opinion in the Fifth or Fourth Circuit websites.

You can search for decisions on Justia from all Courts of Appeal by the Federal Reporter, 2d citations, http://law.justia.com/cases/federal/appellate-courts/

District Court and Bankruptcy Court opinions are also available, organized by state: https://www.justia.com/courts/federal-courts/federal-courts.html

But the visitor the the District Court for Massachusetts seeking to search court opinions will find a Court Order from 2014 announcing that the website will only provide RSS feeds for their opinions.  For users wishing to search or browse opinions are directed to PACER, which is a billable search, or to FdSys, for a FREE search http://www.fdsys.gov.

Other District Courts have not taken this step, and are still available on Justia, like Hawaii, http://law.justia.com/cases/federal/district-courts/hawaii/hidce/2017/,

Eastern Texas, http://law.justia.com/cases/federal/district-courts/maryland/mddce/2017/

or Maryland http://law.justia.com/cases/federal/district-courts/maryland/mddce/2017/

which appear to post scanned images of decisions. You open the year you wish to search and scan what appears to be a chronological list of decisions. The name of the case can be clicked to open the scanned decision. There does not appear to be a search by topic or a search box to enter terms, or a list of decisions by topic for either the Courts of Appeal or the District Courts.

You can search for a decision by its citation in either the Federal Reporter 2d (Courts of Appeals) or in the Federal Supplement or Federal Supplement 2d (District Courts), or the Bankruptcy Reporter if you happen to have those citations.  But you can locate many items on Justia by searching Google with the name of the case. 

 

Print

FDSYS, the digital version of Government Printing Office (GPO)

COMPARE FdSYS, the GOVERNMENT PRINTING OFFICE ONLINE

  1. U.S. Codehttps://www.gpo.gov/fdsys/browse  /collectionUScode.action?collectionCode=USCODE 

Recommended, for most searches

  1. Provides a choice of 22 years’ of U.S. Codes from 1994 – 2015.  It is unusual to be able to look back at outdated statutes. So this, and the version presented at Justia are worth remembering.
  2. You have the entire U.S. Code available to browse by dropdown menu. However, if you choose to look at the section we examined earlier, 15 U.S. Code §80b, you won’t discover it by browsing in FdSys!  There are a number of A or B subsections and subparts, but this one does not show up in the menus. This section is in the “appendix” and won’t show up with browse.  Ordinarily, browse works great, but not for this particular section.
  3. In order to locate the existence of the chapter, which I KNEW was in the Code from LII, and other sources, I had to use an Advanced search for < Investment Advisers > and then sort through the various results to locate the actual sections of the Code, rather than amending Public Laws.  Not very user-friendly if you have an oddity like this one.
  4. Once located, it was a nice layout and easy to move from one section to another or to move to another level of the code.

eCFR bluepill

  1. Code of Federal Regulations – eCFR  – HIGHLY RECOMMENDED
    1. This is a VERY GOOD resource!  Easy to use, current, easy to verify.
    2. Code of Federal Regulations is the collected rules from federal agencies that put in the details and teeth for the Congress’ laws. So, if Congress passes the Clean Air Act, it makes sense for them to ask the biologists and engineers at the EPA to put in details about how many parts per million of various pollutants are safe to breathe, and how to best reduce the exhaust or polluting smokestacks.  Congress also lacks the personnel to enforce the law – go around and test the smokestacks at coal power plants or be sure auto plants are being honest about the fuel efficiency and catalytic converters they produce. So you can see from this single example that for both the details about all kinds of law, and about enforcement, Congress hands things off to all different agencies.
    3. The front page tells you immediately how current the materials are (on March 17, 2017, the page told me in bright red letters that the regulations were current to March 16, 2017).
    4. First option is to browse from the drop-down menu on the front page. You get a list of Title numbers and the topic for each title.
      1. Choose a Title and it opens to the chapters within, each showing the heading, and a range of chapters for each heading.
      2. So, to look at 17 CFR 275, takes 3 or 4 clicks depending on whether I want to look at all of 275 or if I already know where in the list of subheadings I want to focus.
      3. Notice at the top of the page, you can see the “breadcrumb trail” where you can back up to see the higher vantage point on the code. So you can back up and see all of Chapter II in Title 17, SEC., which also gives a table of contents for the chapter.
      4. Once you start reading any of the rules, you move immediately to the next rule without further clicking, or returning to any menu. There are “return to top” arrows throughout, for the reader’s convenience.
    5. Next option is a “simple search” similar to the keyword search in Google, with a search box. You can enter a CFR title, and/or term(s).  The default is to search the full text of the rules. But there is a drop down menu allowing you to choose from a long list of options including Section, Authority, Heading or Authority to be searched instead.  You can choose to display results either in order by most relevant or by citation number.
    6. There are two Advanced Search options
      1. Boolean Search, which is using “And” “Or” “But Not” to connect your search terms. eCFR uses a form to allow the user to choose up to 3 terms to combine with any of the 3 connectors. The terms can appear in either the full text, or any of a very long list from a drop down menu, such as various headings, section, and more. Again, choose to display results either by relevance or by CFR citation number.
      2. Proximity Search, using another form, to let the user to specify a word or phrase, and search for up to 2 terms that may either occur within, not within, specifically following within, or NOT following, within X words. So, for example, I might search in Title 17 for clients w/in 10 words of proxy. And that found 17 CFR §275.206(4)-6, Proxy Voting. Same choices for display by relevance of CFR citation.
    7. You can build a Search History which can be helpful for lengthy searches.
    8. eCFR provides in-depth Search Tips   and FAQs
    9. From the government, so it’s a reliable source.

 

 

1st Circuit Fed Cthouse

First Circuit Federal Court in Boston

3.  GPO FdSys Court Opinions for Federal Courts https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=USCOURTS  Recommended

1. Appellate means U.S. Circuit Courts of Appeals, organized by by Circuit (notice it does NOT include U.S. Supreme Court).  There is a note that the website relies on the courts to cooperate, and can only provide what the court websites provide.  To get Supreme Court opinions, we will look at the wide variety of options separately, but they are NOT on FdSys!

Open any circuit and immediately the most recent opinions and orders appear in docket number order. Options for PDF or various metadata and zip file formats show up for each file to be downloaded. The full text looks very much like a scanned document. Access depends on the circuit. So, Fourth and Fifth Circuit do not make full text available for free, while other circuits I tested are all available for free. And some circuits extend coverage back more years than others.

2.  District Courts area displayed by state 

District courts within the Fourth and Fifth Circuits tend not to have full text opinions available, but the other courts do, in the same manner as the courts of appeals do. There is more variation among the district courts as to how complete their posted opinions are, some not coming into 2017 yet, some not going back very far in time, but others looking pretty comprehensive, though gappy. Some courts are simply not listed at all.

3.  Bankruptcy Courts by state

Bankruptcy courts are also listed here. Even within the Fourth and Fifth Circuits, I see some Bankruptcy courts that have PDFs up for 2017 decisions.   There are missing courts, but more listed here than under the district court. And those listed have more decisions posted. It appears to be a philosophical difference and a concerted effort to make decisions available to those who need access to the courts and can’t afford to pay. I am impressed.

 

Findlaw

Findlaw http://caselaw.findlaw.com/

This, like Justia, is another website that does a good job of making legal resources available free on the Internet, and they make it pay by running it as a vehicle for lawyers selling services.  This is why you ALWAYS want to go to Findlaw using the URL I give above, not by just googling it or using findlaw.com, which will land the hapless user in a swamp of hungry lawyers’ ads!

alligator swamp

Hungry Lawyers Swarming the Hapless Findlaw Visitor- Always use the Case-Codes URL!

U.S. Code – Recommended

  1. From either the “Caselaw” home page above, or from http://codes.lp.findlaw.com/uscode, the user can browse the U.S. Code very easily on Findlaw. However, testing the browse, I ran into the same trouble that I had on FdSys, because the 15 USC §80b is an appendix, and the browse tables do not seem to be set up to allow access to these.
  2. However, on Findlaw, there is a convenient keyword searchbox at the top of every page.  I entered a very sloppy search < invester adviser > and with that misspelled search, still located several good entries for the Investment Advisers Act, including 15 U.S. Code §80b-6,  http://codes.lp.findlaw.com/uscode/15/2D/II/80b-6

Code of Federal RegulationsNOT RECOMMENDED

1. From http://www.findlaw.com/casecode/cfr.html , it won’t matter whether you choose to search by key word or by citation using their nice little form, you will still be booted over the the GPO website, and start from scratch!  Why did they even bother?!

Federal Court Cases – Recommended

  1.  U.S. Supreme Court Cases http://caselaw.findlaw.com/court/us-supreme-court
    1. Search by party names, and date-range
    2. Search the full text of the opinions by keyword, and date-range
    3. Search by docket number or U.S. Reports citation
    4. Browse opinions by year, and by court
    5. Easy to use and very user-friendly
    6. You get an HTML of the full opinion with the official syllabus provided by the court staff, and any concurring or dissenting opinions, all in one long document.
    7. Options are to print or share on a very wide variety of social media platforms or email
    8. One nice feature is an option to change font sizes, which can be handy if you like a larger font size!  Available in all Findlaw search results.
  2. Federal Courts of Appeals, District Courts, and federal courts of special jurisdiction
    1. http://caselaw.findlaw.com/
    2. Same searches as above for Supreme Court
    3. Get the same HTML full text opinions, with options to print or share over social media or email
  3. State Court Cases http://caselaw.findlaw.com/
    1. These links take you to a page for the complete law for that state, cases from all reported levels of courts for that state, statutes, and sometimes administrative code, bills and ordinances. These last three vary by state, and I believe it always depends on Findlaw connecting to the state’s website. But the statutes and case law are hosted by Findlaw and are excellently maintained.
    2.  State case law, as with the federal courts, provides searches by party name, full text by keyword, docket number (no citation), and browse.  Federal court opinion links for each state are posted in this list as well.
    3. HTML of full text of state cases, with options to print or share over social media or email.

 

Forms – Not Recommended/ Recommended partially

One feature Findlaw has along the top menu is Forms.  I would not recommend these. They have “general” forms, like contracts or wills, for sale and so-called “sample forms,” and arranged by broad type, like incorporation or real estate. I would caution against using these because the requirements for these vary by state, and you can make mistakes without realizing it by using a form with no further information. It would be better to look at a form book that explains things – not all do, but search in a library for a form book on your topic with explanations, and tailored to your state and topic.  An excellent one, usually, for Massachusetts in Massachusetts Practice, Forms.  This is a common set, even for large Public Libraries to carry.  Be sure you are looking at the most recent version, by looking in the “pocket part” inserted in the back or sometimes front of a law book.

For Massachusetts, court forms are available free for many types of actions where it is common for people to represent themselves. Remember the Mass.gov/courts website that included forms – this is exactly where the Findlaw Massachusetts forms page takes you!:

Search for forms http://www.mass.gov/courts/forms/

or list:

http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/forms/

Remember that it often helps to read for background as well, so either Google or read on the very helpful Mass Trial Courts Library website Laws by Subject if you are dealing with anything in Massachusetts.  If you are in a federal court, the judge will still apply state law if there is a question involving it:

http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/

 

SUPREME COURT DECISIONS – other sources

HOW TO READ A SUPREME COURT OPINION http://www.americanbar.org/content/dam/aba/images/public_education/Reading-SCOTUS-Opinion.pdf

Helpful article explaining the various parts of these most specialized and impactful court decisions.  Not a source of opinions itself, but useful to make you a savvier reader.

 

SCt banner_h120

OFFICIAL SUPREME COURT WEBSITE https://www.supremecourt.gov/opinions/opinions.aspx

Interesting, but probably not the best place for either opinions or hearing oral arguments or rules. It’s not terrible, but it’s not great, either.

 

SCOTUS BLOG http://www.scotusblog.com/ Recommended for in-depth

Provides the full text of opinions, briefs, transcripts and audio recordings of the oral arguments and videos of some speeches by Justices, and lots of articles analyzing the Court and its opinions.  If you want to know how a particular decision will affect the world, this is a handy place to come.

Use the list of “Merits Cases” by term to browse for a decision you want.  Or use the keyword search box that remains in the upper right hand corner of the website to search for a decision by topic or name. They provide a list of “Major Cases” for the current term, and interesting statistical analyses. They also follow upcoming cases. Lots of features on current and past justices and interesting visual displays of how the justices vote on each case and how their votes line up together.

 

Oyez logo_black.5c97a031

OYEZ PROJECT https://www.oyez.org/  Recommended for special features

Provides full text of opinions, briefs, transcripts and audio recordings of the oral arguments and videos of some speeches by Justices, and lots of articles analyzing the Court and its opinions.   Interesting special feature is a video tour of the court building, and little features on each justice, current and past.  There is also a Oyez Baseball feature that combines love of baseball and a geeky interest in the Supreme Court, at

Supreme Court decisions 1792 – current, in blocks of decades. You can select a year, and browse the decisions in alphabetical order.  You get the case name, argument date (usually), decision date, majority author and the vote split.  You can also, within each year or not, select to view the cases by issue, and a list of topics will appear.  Some topics have sub-headings that are revealed as drop-down menus when you click on them.  When you select a final subject, all the cases decided that have been indexed under that subject will be listed, in alphabetical order by case name, regardless of year decided.  As before, you see the case name, argument date (usually), decision date, majority author and the vote split.

When you select a decision, you get the name of the case, the term in which it was decided, and (interestingly, at least for recent cases), the location at which the facts of the case occurred.  This includes  a Google  Map, which allows you to drop the little yellow human figure onto the map and see the location from the Google car’s point of view, moving up and down and turning around to see the surroundings.  It can be surprising how much this can add to your understanding of the facts. For some decisions, seeing the environs of the where the case arose can really bring the matter to life.

Then, the site presents a succinct statement of the facts and the question of law presented. These are prepared by law students, I think, under  supervision at Chicago Kent Law School, though it’s not clear from the website.  Then there is a link for the oral argument recording.  Then the holding, written, clearly as votes for one named party or against.   Following that, is a heading, Legal Provision, which I believe means the basis for the holding.  And then follows a brief statement of the Court’s reasoning in the majority decision.  Then, there are photographs of the justices who participated in the decision. The default display is “by decision,” in which those on the majority appear clearly, and those who dissented or voted with the minority appearing as if their photos are fainter.  The reader has the option to re-sort the justices by seniority or by ideology.  This display remains available as far back as 1953, for at least a few decisions.  The oral argument archives reach as far back as 1955.  The coverage is spotty until the 1968 term, when the Court began recording all oral arguments and archiving them.   Oyez Project has undertaken a great effort to improve the audio quality of the recordings that the Supreme Court made and stored at the National Archives, which apparently are quite variable and low in quality.

lab testing

SO, WHAT DID WE LEARN ABOUT TESTING, COMPARING AND EVALUATING RESOURCES?

  1. Look at the dates of coverage
  2. Look at what materials or geographic coverage, what exactly is covered?
  3. How reliable is it?  This means several things:
    1. Is the website up and running most every time you go there?
    2. Do the results come back quickly or are there long pauses when you enter a question?  Does it just drop you?
    3. Is the material current, or easy to tell how up to date it is?
    4. Do you believe the material is correct and standard – is it the real text?  This is not something we really ran into in these websites, but it is something to consider – how easy it would be for somebody posting legal materials to accidentally or even purposely to insert errors!
    5. Is it something you could cite to a court? Is it from a government website or something a lawyer would recognize, such as a reporter?  You need a correct citation that is recognizable for a court.
  4. How easy is it to use?  This is pretty important, actually.  Is it “user-friendly”?
    1. Can you easily locate what you need?
      1. Can you browse?
      2. Can you search?
      3. Does it have more than one kind of search?  Do you need more than one kind?
      4. Does it have user aids, such as HELP or Search Tips or FAQs or Tutorials?
    2. Can you easily update your legal materials?
    3. Can you find related law?
  5. How does it compare to other sites?  Is it better or as good as? Does it have special features that set it apart?
  6. Is it FREE?

 

PROBLEM & PRACTICE – Bankruptcy Overview

Perhaps you or a family member or friend are considering filing for bankruptcy, and would like to find out more.

What would be the basic first step?  _______________

 

Bankruptcy information is available several places. A Google search for < bankruptcy > turns up this helpful webpage from Mass.gov, our state government:

http://www.mass.gov/dor/businesses/current-tax-info/guide-to-employer-tax-obligations/bankruptcy.html

This page tells about 4 different types of bankruptcy, though only 2 apply to most people:  Chapter 7, which wipes out most debts, and Chapter 13, which allows you to “reorganize” your debts, and work out a payment plan.  The other two are specialized for farmers and those too wealthy to file under Chapter 13 thresholds. Assuming that Chapter 7 “liquidation” is the type being considered, let’s refine the Google search: < bankruptcy chapter 7 >   Now we have new choices.  There is a link to U.S. Courts, one to Wikipedia, another to Findlaw, all of which look good. But there are several to Nolo.com, which have very useful looking snippets.  I can tell you that Nolo is an excellent publisher which specializes in books for the general public designed to demystify the law.  I recommend Nolo Press books to my law students, and have bought them for my law school library, and would recommend them to any non-lawyer as well.  Let’s make that a first stop, even though it did not appear as the very top Google result. There are 3 choices that came up on my Google search from Nolo, “Who can’t file,” “Bankruptcy Overview” and “Bankruptcy Basics.” A hard choice, which to view first!

After looking at these 3 chapters in NOLO, then looking at the U.S. Courts website might be a good idea. http://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-7-bankruptcy-basics    In this website, much of the same information is covered, but there are very helpful citations to the U.S. Code, and a tip on where to get the form to begin filing, for free from the Courts’ website.

Do not simply rely on either the Nolo press chapters or the Bankruptcy Court website.  If you have student debts, for instance, a knowledgeable and experienced attorney may be able to help you discharge some of these debts despite what it says on these websites.  Do not, however, assume that any attorney will know enough to navigate this complex area combining student debt and bankruptcy!  It is a specialized field, and you should look for somebody with that combined experience. Ask questions about experience and listen carefully to the answers. Ask for references!

But when you think about bankruptcy or attorneys, you will have background information, and will have saved a good deal of time (and money!) by doing research for your lawyer.  There are some types of legal problems where it may work for a literate and hard-working person to represent themselves, but it is very difficult.  Lawyers spend 3 years in law school learning to navigate the language, rules, and theories involved.  Then, for most, the first years in practice represent a LOT more learning on the ground, so don’t assume you will be ready to handle a case on your own.  But people should be able to research and learn about their legal problems, find the basic answers to their questions!

 

What we did:

  1.  We had a general question about bankruptcy
  2. We did a general Google search < bankruptcy >
  3. Based on the results, we refined the first search and got more focused information    < bankruptcy Chapter 7 >
  4. Based on the results, we have background information for making a more informed decision, for choosing a lawyer (McKenzie gave input), and some basic research to hand to the lawyer to save some money.
  5. We have access to a form for free, and some U.S. Code citations.  We can follow those up on Findlaw or LII if we wish to read the statutes.

 

PRACTICE PROBLEM 2, Federal Court: SSI Appeal

Supplemental Security Income (SSI) is a program from Social Security which pays monthly benefits to people of any age with limited income and resources who are disabled, blind, or age 65 or older. It can be an important income supplement, in addition to Social Security benefits. There is a clear process for applying for the benefits, and for appealing determinations at every step of the process, from initial Reconsideration, to a Hearing before an Administrative Law Judge, to an appeal before the Appeals Council. And if you still are unhappy with the outcome, you have a right to be heard in a federal district court in the courthouse nearest where you live. At every step there are time limits, usually 60 days after notification, by which you must let Social Security know you wish to appeal, and forms to use for such appeals. But the court hearing has no such form.

If we want to know about how to appeal our failed application for SSI to the federal court in Boston, what might be some questions and good search terms?

______________________________________

_______________________________________

_____________________________________

(It might be helpful to look back at all the earlier reasons allowed for appeals.https://www.ssa.gov/forms/ssa-561.pdf )

This web page gives 3 helpful links, depending on why your appeal was denied.

(searching social security website for information on SSI appeals: https://www.ssa.gov/disabilityssi/appeal.html (they have a very user-friendly keyword search box that I thought made this easy.   Notice the list of publications on the far right of the screen includes your right to a representative! )

Getting to court. I googled < how to file in federal court > and found a very useful PDF document for people wishing to represent themselves in court, but designed for federal courts in Washington State, http://www.wawd.uscourts.gov/sites/wawd/files/ProSeManual4_8_2013wforms.pdf. This means some information, such as where to find the courthouse, is incorrect. But a lot of the information is still correct and very helpful. Scrolling along through the results, patiently, I found in the 2nd page of Google results, a NOLO Press chapter, “How to Appeal Your Disability Claim to Federal Court” http://www.disabilitysecrets.com/resources/disability/how-appeal-your-disability-case-federal-distri  This is extremely useful because it tells you of an Act under which you may get your attorney’s fees repaid, and also the steps in court, and rules by which a judge would decide your case. There are helpful links in the chapter as well.

I really hope you get an attorney, which will greatly help your chances of success.  But here is a manual written for lawyers on how to draft a winning document for federal court: http://federalpracticemanual.org/chapter4  It may be useful to you or to your lawyer. Because it is written for lawyers, it assumes a level of background knowledge and training from law school. Here is a guide written for the general public https://www.avvo.com/legal-guides/ugc/how-to-file-a-lawsuit-in-federal-court, about generally how to file in federal court.  One of the big questions is always whether you have a question that is right for federal court. If you are appealing a Social Security Disability or SSI denial, have followed all the steps up to the Appeals Council, and are within the time limits, you must be in federal court. If you do not have enough money to pay the filing fee, you may apply for a waiver of the filing fee and other fees, but you must provide the court with proof.

What might be some important sources of information to proceed in federal court:

Court rules!

Federal Rules of Civil Procedure tell us how to file non-criminal cases, and proceed in court.Available from

  1. LII (https://www.law.cornell.edu/rules/frcp)
  2. National Court Rules Committee https://www.federalrulesofcivilprocedure.org/frcp/

 

Federal Rules of Evidence  tell us how to present evidence to judges in federal court and what kinds of evidence is allowed (ever hear of “hearsay?”). Available from:

  1. LII (https://www.law.cornell.edu/rules/fre)
  2. National Court Rules Committee https://www.rulesofevidence.org/table-of-contents/

 

To successfully file in court, you need to know

  1. The standards that the court will use to decide – so you need to know the law for the subject (SSI)
  2. The procedures to file and move your matter to the judge —
    1. Rules of procedure for  the kind of court, any required forms, fees, proper service on the opponent (that you sent them notice of the lawsuit, and prepared proof that you sent it for the court), and
    2. Any rules for SSI about deadlines to file your appeal.
  3. The rules about providing evidence in the type of court

 

This is why it’s a good thing to hire an experienced lawyer;

exploding-head

so  your head does not explode.

 

But it’s also a nice thing if you can look things up for yourself and be a bit independent!

We_Can_Do_It_-1835

 

PRACTICE PROBLEM 3 Federal Tax Question

Perhaps you gave your old University an old, very large oriental carpet, and wish to take a charitable deduction for it on your taxes. You need to find out whether you need to get the carpet professionally valued or if you are allowed to tell the IRS what you think it is worth.

The simple way to try this first is to use Google < what is the value of in-kind donation irs allows donor to value >  The first result is a publication from the Internal Revenue Service, Publication 561, which was written to provide guidance on this issue. There is a section on the problem of determining Fair Market Value, but aside from that, the quick answer is that if the deduction is for $5,000, or less, the taxpayer doe not have to provide a professional appraisal of the value of a gift. So the question may simply turn on how much you planned to take as your deduction for the carpet.

TIP: Be sure you are looking at the most recent, current information – the IRS has issued many iterations of this publication!

In case you thought this was a fabulously valuable carpet, you may want to investigate how to value oriental carpets.  Again, start with Google < how to appraise oriental rugs > turns up a number of interesting-sounding results, but I really liked this very practical website: RugRag.com, appraisal tool http://www.rugrag.com/AppraisalViewer.aspx?FormulaID=11

Depending on what details entered, this rug could potentially exceed the $5,000 level, and require professional appraisal. You might double check with another of the online appraisal tools that popped up with that Google search as well. This problem does not give you enough details to really do a complete appraisal, and in real life, you may not recall or have all the details either. You may decide you only want the $5,000 deduction, or you might want the professional appraisal.

Notice that the IRS has guidance publications for the aid of the general public.  They also have forms you can download and many other helpful things. You have to be patient, especially close to tax day! And bravely going to the section labeled “for tax pros” will actually get you much more helpful links. Tax agencies, whether federal or state, are unusual in that they really WANT to share information with the public. And tax practice, for lawyers, is unusual, in that instead of reacting after the fact to fix a problem, it is planning ahead of time to reduce taxes.  So tax lawyers need to have as much information as possible about how the tax agencies will apply the law, in order to advise clients.  And tax agencies benefit from broader dissemination of the law and their interpretations because they need do less enforcement.  Some agencies, like Social Security and IRS really do try to get their information out to the public!

Book em Danno

As Jack Lord used to say on Hawaii 5-0, “Book ’em Danno!”

Book mark those helpful websites!

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Class 2, March 30. 1 -3 PM

SHORT REVIEW – PRIMARY COMPARED TO SECONDARY LAW MATERIALS

Recall that only the materials created by government, that actually bind people, such as statutes or court cases are called “primary law.”  If you have a citation for a court case, such as Marbury v. Madison, 5 U.S. 137 (1803) that is primary law. Or 16 U.S.Code §1531  is a cite to federal statute, and another form of primary law.

Secondary resources help you find and understand the primary law.  They are usually better places to start research, because they help explain the law, and they often pull together law from several sources into one place.  A good secondary resource can speed you up and make research a breeze!  My most highly recommended resources for this course, such as the Massachusetts Trial Courts Libraries website are great secondary resources, offering both help in finding the primary law, and often explanation.  The gathering and organization of the material on this website, by itself, is very helpful, and occasional notes go even farther to explain matters. And even better, the librarians include some explanatory materials, either .pdfs or webpages, all available online for free.

 

massgovheader-seal

HOW TO START RESEARCH ON MASSACHUSETTS QUESTIONS

We already looked at one legal question in Massachusetts last week, exploring landlord-tenant law.  I used that because it is a common question that comes up in many people’s lives, where you, a relative or friend may have such an issue. And, fortunately, in our home state, it is easy to find at least the beginning to an answer. This is largely due to the pioneering work of the Massachusetts Trial Courts Libraries.  We looked briefly at their website last week, but it should definitely be on your list of bookmarks for great legal resources.  Actually, try using Google to look it up: < Massachusetts Trial Courts Libraries > and you will get a nice set of links to a number of their services.  For some, it’s easier to find them this way (or through the links here) than on their website right now.

Massachusetts Trial Courts Libraries:

Home page: http://www.mass.gov/courts/case-legal-res/law-lib/

This actually has all the links to the various resources I list below, and more, but the new design is difficult to navigate for some users.  Visit the home page and see what you think.  If you find things easily, great!  If it’s hard for you to locate what you want, come back and use my links to the highlights.

Laws by Subject: http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/

This is a very useful sort of short index to the most-used statutes in Massachusetts.  This began as a quick-and-dirty finding list for the librarians themselves, created as they answered questions from library users in person, by email or over the phone.  They keep adding to it, so it keeps growing and stays current. It links you right to the full text of the statute, and the language for the law is completely up to date. The great thing about this list is you can browse the subjects and usually find a term that describes what you want. Click and you will find your law!

On this same webpage, you will notice Laws by popular name and Legal forms.  Two more very helpful links!

Laws by Sourcehttp://www.mass.gov/courts/case-legal-res/law-lib/laws-by-source/

This provides links to court decisions from various courts in Massachusetts, statutes, all regulations and decisions posted to the Web by state agencies, all bylaws and ordinances posted to the Internet for Massachusetts towns and cities, court rules, historical material, and more. For this search, it is more helpful if you have a citation.

Ask a Librarian:  On every page, on the right hand side of the screen, you will see a link labeled “Ask a Librarian.”  If you press the link, it takes you to http://www.mass.gov/courts/case-legal-res/law-lib/libraries/services/ask.html  which gives you multiple ways to send your question: text message, online chat, Instant Messaging, email, telephone or live visit.  Library locations and services are listed http://www.mass.gov/courts/case-legal-res/law-lib/libraries/

Let’s try a new problem with the Trial Courts website. Perhaps you bought a used car five days ago from a big dealership, and it just is not working well. You brought it into the dealership, they worked on it, gave it back, and the car still does not run well.  No matter which mechanic you have look at the car, nobody can fix the problem. It won’t even pass the motor vehicle inspection!  What sorts of remedies might you have?

  1.  Where in the Trial Courts Website would you start research?

 

2.  How might you decide among choices?   I like browsing, especially for statutes because it allows me to shop around for the best choices and see if there is more than one right answer.

 

Lemon-Law

 

  Other great Massachusetts sources

Massachusetts Legislature: statutes (and bills)

https://malegislature.gov/Laws

 

State Library list of useful links

http://www.mass.gov/anf/research-and-tech/legal-and-legislative-resources/massachusetts-law.html

Includes statutes, regulations, court decisions, and historical materials available free online.

 

Massachusetts Attorney General Office

http://www.mass.gov/ago/

Mostly about workplace and consumer rights, public safety and civil rights, and open meeting laws. Many helpful links and forms.

 

Findlaw and Justia Cases

http://caselaw.findlaw.com/   (not just Massachusetts). This site is searchable by subject, and the format of the cases may be more comfortable than some of the court website decisions you retrieve through the Trial Court Libraries or the State Library.  You can also get decisions for the major state courts (as well as federal cases and statutes) at Justia, https://www.justia.com/

 

 

ASKING YOUR QUESTION AND REFINING IT

  Preparing to ask your question

 

garbage-in-garbage-out

 

          Garbage in, garbage out.

 

Whether you are asking Google, a high-powered search system or a librarian, you will get better results if you spend a little time thinking first about WHAT you really want to find.  Sometimes, you may think you want to find out about Prohibition, for instance.  But it sometimes helps to talk a little about what you really are interested in researching.  Maybe you are interested in the colorful characters of Billy Sunday and Carrie Nation.   Or maybe the wild gangster rum-running culture that developed, with characters like Al Capone, or illegal moonshine production.  Or maybe you really do want to study how the statutes and 18th Amendment were passed, and then later repealed.   Just be clear with yourself before you start, or be ready to refine your question as you go along.

 

For instance, in answering the question on the worksheet in week one, about Prohibition laws, I first googled “prohibition laws.”  I located 18th Amendment and Volstead Act. After I entered < Volstead Act > as another Google search, I was able to get the Public Law and Statute at Large numbers (citations) for that law, and also turned up a discussion of the earlier, temporary law.  This is an example of refining.

 

Practice Problem:

It turns out there is an interesting problem where a modern distillery in Massachusetts is advertising itself as a living link to the Prohibition Era. They claim to use a recipe discovered on the family farm, in a re-purposed old bank vault behind a disguised door in an old barn. Apparently the grandfather ran quite an illegal distilling business during Prohibition.  In addition to the recipe, “grandpa” collected emptied bottles, with detailed notes on each label explaining who was present at the party or event to help drain it.  There were bottles from long-defunct brewers and distillers, and home-labeled bottles that grandpa may have brewed up himself. The new start-up relies on these notes to claim that their family recipe for rum was a favorite with Mobster Lucky Luciano, who actually owned several famous speakeasies in New York and ran a great deal of rum himself.

Lucky-Luciano-1926

                                                                   Lucky Luciano in 1926

On the strength of this connection, the company markets to nostalgia buffs, those who are interested in personalities and history, and charges as much as $45 for a fifth of their rum. The company has a detailed website, including a video tour of the hidden room in the barn.  They offer in-person tours of the distillery as well, as well as video tours.

The problem is that the rum is actually produced in a giant distillery in Indiana that specializes in providing a bland generic product for companies to label as their own.  The Indiana distillery trucks unlabelled barrels of vodka, rum and whiskey to the small Massachusetts “distillery.” There, the barrels are off-loaded, resulting in excise taxes for the state government – thus there is a record of the shipments.  The local distillery keeps the liquors in the shipping barrels, as they look more authentic. As needed, they decant the various liquors into old-fashioned looking bottles and label them.

Indiana distillery Lawrenceburg

Giant Distillers, MGP of Indiana, Lawrenceburg, IN

Harry has heard these rumors and has receipts where he bought 10 bottles of the rum and whiskey, and memorabilia from the company as gifts for family and friends.  He would like to know if he can get his money back or get some of the money back!  He believed he was buying a piece of authentic Prohibition history and now he feels cheated.

  1.  What is the basic issue?

 

  1. Where would you want to start researching?

 

  1. What terms might help?   Consumer Protection        Fraud        Truth-in-Advertising might be other terms.

 

  1. Helpful links: http://www.masslegalhelp.org/consumer/unfair-deceptive-trade-practices Unfair and deceptive trade practices seems helpful, but old.  Also helpful and more current (the Unfair and Deceptive Trade Practices post is from 1998!), is the Attorney General explanation of how to handle your own Consumer Protection  (Chapter 93A) complaint http://www.mass.gov/ago/docs/consumer/conprotlaw.pdf  Harry may also want to check out the Attorney General consumer complaint form, and advocacy division at http://www.mass.gov/ago/consumer-resources/consumer-assistance/

 

  1. And Harry may be able to file a federal consumer complaint as well. What options there? https://www.usa.gov/consumer-complaints

 

Problems and Practice

Morrie has an elderly aunt who has Morrie worried. Aunt Georgia has recently developed a morbid fear about probate eating up her estate. She is not a hugely wealthy lady, but more middle class.  Morrie wondered where this talk came from until, visiting at Georgie’s home, he stumbled across a bunch of literature and forms for Living Trusts. The brochures actually said things like “The Choice is Yours, Throw Your Money Down the Government Hole or Protect Your Loved Ones.”  They made it sound as though a regular will was a guarantee that lawyers, judges and the probate system were set to suck all the value out of a deceased person’s estate, and nearly drew a picture of them as vampires or vultures. What concerned Morrie most was the amount of information that the forms wanted to set up the Living Trust.  This almost seemed like they were getting information for identity theft, or to steal the money outright themselves!

capitalismgreed

What can Morrie do to help her Aunt Georgia?  Georgia and Morrie both live in Massachusetts.

  1.  Try looking at the Massachusetts Trial Courts Libraries, Laws by Subject website, Laws by Subject: http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/

 

2.      What might be good topics here?

 

3.     Any good resources under that heading?

 

REVIEW

What are the two types of materials you see as a legal researcher?

 

Which type of material is usually the best for starting your research?

 

Why?

 

Did you see examples in our problems above?

 

Where would you go to find information on Massachusetts landlord/tenant law?  (tell how & where you found information)

 

 

 

Where would be a good place to locate Chapter 186 Mass. General Laws Section 23 (Ch. 186 M.G.L. §23)?

 

Which of these resources would you class as primary and which as secondary type source?

 

Find information on Massachusetts law on shopping and ability to return items. (tell how & where you found information)

 

 

Can you locate information on how to track a bill that is being considered in the legislature on disclosing toxic chemicals in children’s products?  (hint: use Google)

 

800-state-house-flag

Massachusetts State House

STRUCTURE OF GOVERNMENT IN MASSACHUSETTS

Remember from the first class the three branches of government in the federal (national) government?  States have the same basic arrangement, and Massachusetts is no exception.  Our Commonwealth has one of the oldest state constitutions, and that special title, rather than “state.” But we have the same branches to run our government business:

 

3 Branches pix

 

  1. Executive branch, the governor’s office http://www.mass.gov/governor/
    1. Under the governor’s office are the various administrative agencies, such as the Department of Revenue or Department of Environmental Protection, which produce regulations that implement the laws from the legislature.  For instance, when the legislature passes a law that is complex and requires expertise to implement, and time to put in details and enforce, they rely on agencies.
    2. The administrative regulations are given citations such as 452 C.M.R. 3.01, dealing with workers’ compensation.
    3. C.M.R. stands for Code of Massachusetts Regulations
    4. Many, but not all, of the CMR are available online at http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-source/cmr/, arranged by the citation number.  You need to have the cite to find them this way.  You can locate some of them through the Laws by Subject link here: http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/
    5. To find ALL C.M.R. provisions, sadly, you need to either go to a library and use the print copy of the regulations and updating Massachusetts Register (M.R.), or have access to a searchable subscription through Lexis or the Social Law Library.  It is most unfortunate that our Commonwealth does not make a full set of regulations available to the public free of charge. But MANY are online at the Trial Courts Library website, for free, and are kept up to date (links above).

 

800-state-house-flag

  1. Legislative branch, in Massachusetts, called the General Court, which produces the laws, or statutes, called the General Laws of Massachusettshttps://malegislature.gov/
    1. Massachusetts statutes are available free from many places
      1. By Subject http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/
      2. By Citation (official; includes options for bills as well as the code) https://malegislature.gov/Laws/GeneralLaws
      3. By Popular Name (browseable table) http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/popname/
      4. By Citation (includes access to older years’ codes as well) http://law.justia.com/codes/massachusetts/2016/  
      5. By citation, but also searchable through Findlaw http://codes.findlaw.com/ma/
    2. A citation might look like M.G.L. Ch. 90 §7N (Lemon Law), or M.G.L. Ch. 93 §§50 – 68 (Fair Credit Reporting Act).   M.G.L. stands for Massachusetts General Laws.  Ch. stands for Chapter, and § is a symbol of two S S hooked together and means Section. Chapter is the larger division in Massachusetts statutes, and Sections are the subdivisions within the Chapters.
    3. If you are looking at a subdivision in any statute set, you can usually go to the table of contents for the entire Chapter (or Title in the Federal laws), and see how that portion of the law is organized. It is a quick way to scan for other related laws you might want to know about, and be sure you have found all the key laws in that Chapter for your research.  It is also a quick way to orient yourself in the complicated organization of the legal code. You can get to an overall table of contents for the whole Code, or just that chapter or area of the code, usually, looking at the top of a web page, or the left-hand side of the page.

 

 

cropped-themis-182x3001.jpg

  1. Judicial branch http://www.mass.gov/courts/  (our highest level court is called the Supreme Judicial Court), the various levels of which hear court cases. The highest court decides whether laws are constitutional.
    1. This is a webpage explaining the different types of courts in Massachusetts. There are seven different types of trial level courts! http://www.mass.gov/courts/court-info/about-mass-courts/
    2. Very handy finder for free forms, many different types, for courts in Massachusetts http://www.mass.gov/courts/forms/
    3. Self-help center for many issues on Massachusetts courts http://www.mass.gov/courts/selfhelp/
    4. Rules of Court for Massachusetts (including downloadable so you can take them with you to court) http://www.mass.gov/courts/case-legal-res/rules-of-court/
    5. Court decisions
      1. For published and trial court decisions FREE, official site http://www.masscases.com/     Pay attention to the notes that tell you the DATES covered for each group, the courts covered, and in a few cases, whether you can search by citation.  Includes “slip” opinions, which are decisions issued that very day – the newest cases.
      2. Findlaw page for Massachusetts includes choices for highest court, appeals courts, and federal courts, including some slip opinions. http://www.findlaw.com/casecode/massachusetts.html
      3.  Justia opinions for highest and appeals courts in Massachusetts, by date or citations http://law.justia.com/cases/massachusetts/
      4. TIP:  You may find a website such as the Public Library of Law (PLOL, http://www.plol.org ), that SAYS it has case law for ALL 50 states.  But LOOK CAREFULLLY: http://www.plol.org/Pages/Search.aspx
        1. How far back does it promise the state cases will go?
        2. Why is PLOL up there???  Notice the paragraph below the State cases, where it says ” PLoL also includes free links to paid content on Fastcase. PLoL is one of the Web’s largest free law libraries, but with additional links from Fastcase, it is one of the most comprehensive law libraries in the world.”
        3. Be alert.  PLOL is up as a free “come on” for the charging, searchable site, Fastcase.  Fastcase is a good alternative for lawyers who want a less expensive search system alternative to the VERY expensive systems of Lexis or Westlaw.  But for most non-lawyers, this is not going to be a good use of money.
        4. PLOL is a good resource for federal material or statutes, but there are LOTS of alternatives. The one advantage it offers is a search box, which is also available on Findlaw (they work differently though!).
        5. Whenever you find a search box, try to make the best use of it, by looking for TIPS, FAQs, tutorials or other user aids that will help you understand better how the search works!
          1. Notice PLOL tutorial;
          2. Compare the Findlaw case/code home page http://caselaw.findlaw.com/ 
            1. If you don’t find a Tips or FAQ or Tutorial link, but you DO find a link for Advanced Search, click on that.
            2. Compare with the alternative. There is usually a form to fill in, that will guide you, on the Advanced Search. You can see what kinds of terms and types of information are being searched.
            3. You can finally test the search yourself and make your own conclusions.  Run some test searches and see if you can deduce how the search algorithm is designed!  The more you understand about how the search engine runs, the better you can make it work for you.

 

searching

 

  1. IMPROVE YOUR SEARCH SKILLS
    1. That includes using Google better!  See https://support.google.com/websearch/answer/2466433  
    2. And Google power search tips:  http://libguides.mit.edu/c.php?g=176061&p=1159675

 

TIP: Evaluate Resources!

  1.   Look at a website such as Cornell’s Legal Information Institute (LII) which is a terrific resource for New York and federal materials.  But NOTICE what you get when you click through for Massachusetts statutes or cases:
  2. Listing by state https://www.law.cornell.edu/states/listing
  3. Massachusetts links from Legal Information Institute (LII) https://www.law.cornell.edu/states/massachusetts
  4. Try clicking on either statutes or cases and see where you go
    1. LII does not have the resources or pretend to cover all 50 states. They focus on New York, their home state, and federal law.  Other states, they simply link to whatever website is available from the state government.  So
    2. Statutes in Massachusetts take you to the Legislature website
    3. Cases take you to the Courts website.
    4. You might as well stay home and use the mass.gov directory.
    5. Know your resources and save time.

 

Evaluate the quality of what is being offered, as we did with LII and PLOL, noticing the dates of coverage, and where links take you.

  1. Pay attention to how easy a site is to use.  You may prefer to use search boxes, but often browsing is best for statutes and regulations.
  2. You may already have a citation, and simply want to enter that or use the drop down menus at the Legislature website.

 

 

 

 

Class 1, March 23. 1 – 3 PM

INTRODUCTION to U.S. LAW,  HOW to CITE, READ and RESEARCH STATUTES

In the United States, there is a national level, or federal system of law.But each state also has its own separate system that also contains statutes, administrative law and court decisions. Currently, that is easy to see in the example of legalizing marijuana.

USMarijuana

It is simplest to learn the federal system, but if the student wishes to learn state materials as well, please ask, and specify which state or states would be most interesting. Each state has different law, an important fact to keep in mind.  The federal system is mostly the same, but regions can vary in terms of court decisions until the Supreme Court makes a ruling, which will govern all the courts below. All federal statutes and administrative regulations are binding equally across the entire United States.

This is a map showing the circuits of the federal courts. Click on the link to open a new window, and see the map there.

circuit_map_in_agency_palette-full-size

 

SOURCES OF LAW IN U.S. FEDERAL JURISDICTION

The United States national government, and most state governments as well, are organized into three branches.

  1. Executive Branch (the President or state governor, who “executes” the law)
    1. Administrative agencies’ rules & regulations fall under this branch
  2. Legislative Branch (the Congress or state legislature, which makes the laws)
    1. statutes are created by this branch
  3. Judicial Branch (the courts, which decides if laws or executive action are unconstitutional)
    1. court cases (judicial decisions) are created here
    2. court rules apply here, and can be important if you have a case in court

The last statement reminds us that ALL of government is powered by, and limited by, the Constitution.  Our federal and state constitutions both give the government its power, but also limit the power of government. Below is a link to a federal government link that has a handy explanation with illustrations, about the basic 3-branch structure of our government.  From the beginning, this government was set up for the branches to balance each other, so that no single branch could grab too much power.  Often referred to as the separation of powers doctrine, this is an important feature of federal law.

USA_Government_Branches_Infographic

          The United States has two legal systems that interact. There is the federal government, based in Washington, D.C.  But every state also has its own government that deals with local matters. Most states have the same sort of constitution, setting up 3 branches of government, and all have statutes, courts, and administrative agencies creating regulations and making decisions, similar to the federal system.

 

UNDERSTAND LEGAL CITATIONS:

Practice reading citations:

Marbury v. Madison, 5 U.S. 137 (1803) (sometimes italics:

     Marbury v. Madison)

  • William Marbury sued James Madison; the names of the parties are in front, either underlined or in italics
  • The Marbury lawsuit went to the – S.Ct. – the Supreme Court. Here is a handy hint: When you see a case reports set named JUST with an abbreviation U.S. or the abbreviation of a state’s name (MA or Mass.), you know you are looking at a set for the top level court for that jurisdiction!
    • You may see other abbreviations than state names or U.S. These are all different reporter names. If it does not give the name of the state, or court, the citation must include that information in the parenthesis with the date at the end.
    • So you may see a citation like Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).  Notice that the case report abbreviation in this instance is Northeast Second (N.E. 2d), which does not tell you the state, so the citation must specify that it was the Massachusetts Supreme Judicial Court in the parenthesis with the date.  There are often more than one set publishing decisions from courts. If the name of the set does not make clear which court, look at the parenthesis that always follows with the date of the decision. The court information will be there. If you just have a state name, it means the highest court for that state. If it says Mass. App., it is the middle level appeals court.  N.Y. App, or N.C. App.  or KY. App. all work the same way)
  • The Marbury decision was in volume 5 of the United States Reports (U.S.), and begins at page 137.  The first number is always the volume number. The second number, following the abbreviation, is the page number.
    • In the Goodridge example, volume 798 of the Northeast, 2d Reports, beginning on page 941.
  • The Marbury decision was in 1803, the Goodridge decision was in 2003.
  • Marbury v. Madison, 5 U.S. 137 (1803)

 

How would you write the official citation for the case where Ms. Goodridge sued the Department of Public Health?  It was published at volume 440, page 309 in the Mass. reporter, in 2003. (Remember the handy hint to recognize supreme courts).

­­­­­­­­­­­­­­­­__________________________________________________________________

You may want to know about court rules.  There are many different types of rules for court.  Rules of civil procedure for non-criminal trials. Rules of criminal procedure, rules of evidence, and more. Here is an example of a rule citation:

Fed.R.Civ.Proc. 12(b) =

Federal Rules of Civil Procedure 12, sub-part b.

 

How would you write a citation for the Mass. state rule of Civil Procedure 58?

_____________________________________________________________

You may need to recognize statute citations.  Here is a federal statute:

16 U.S.C. §1531  =

Title 16 of the United States Code Section 1531  (two SS hooked together = Section sign)

(Title is the largest division by topic in the U.S. Code; Sections are smaller, more specific subdivisions by topic within the larger topic. The U.S. Code has 54 Titles right now. )

 

Note that many states, like Massachusetts, call their largest division for statutes “chapters” rather than “titles.”  How would you write the citation for the Mass. General Laws chapter 94, section 321?  (hint: The official printing of Mass. General Laws is abbreviated M.G.L.) Chapter is often abbreviated Ch.

__________________________________________________________________

QUICK TIPS:

Really quick ways to locate text of a known case or statute:

 

  1. Use Google or Google Scholar https://scholar.google.com/ to quickly retrieve the text.  This is how most law firms have associates get materials in full text.  (FREE)

 

  1. To look up a definition, Google or http://www.uscourts.gov/glossary often works best.

 


FINDING FEDERAL STATUTES

Great Resources for U.S. Law – pay attention to dates of coverage!!  All listed are current as of the time of this course.  (And don’t forget Google!)

Legal Information Institute (LII)

https://www.law.cornell.edu/  Good for federal statutes. Roll to the bottom of the home page to select Constitution or U.S. Code or other law resources.  Check how far back the various courts collections cover, at https://www.law.cornell.edu/federal/opinions#appeals because it varies by court. They do offer some secondary material in WEX, their legal encyclopedia.

 

Public Library of Law (PLoL)

http://www.plol.org/Pages/Search.aspx  Their collection of federal statutes and regulations is complete and current, and so is their Supreme Court collection. But NOTE that their Court of Appeals collection of cases only goes back to 1950 and they do not have any federal district court opinions at all!

 

U.S. Code from Congress (download or browse)

http://uscode.house.gov/download/download.shtml  This collection is kept current, and shows the date of the last update.  It includes an archives, so you can go back and see out-dated statutes, as well, which is really rare for online, free versions.  It’s searchable, with an advanced search with tips.  But you can also browse it by title – my favorite way to get statutes, actually. Excellent site, with helpful popular name table, in case you were looking for the Volstead Act, and didn’t know the official title, National Prohibition Act.

 

U.S. Code from Govt. Printing Office (better if you have a citation)

https://www.gpo.gov/fdsys/browse/collectionUScode.action?collectionCode=USCODE

This web version has become less user friendly.  I would recommend the ones above first. They have “help” videos, so use these, https://www.gpo.gov/fdsysinfo/instructional_video.htm if you go.

TIP:

Often the best place to look for federal answers is with the part of government that works on the topic. So, look at Social Security Administration (https://www.ssa.gov ) for questions on social security or at Internal Revenue (https://www.irs.gov/ ) for tax questions.  Agencies will often post the statutes that apply to their area of government, as well as their own regulations, and sometimes, their decisions. If you don’t know the name of the agency you want (or if it has changed its name or website address), there is a central location for federal government web searching:

https://www.usa.gov/

You can browse this huge website, or search it.

 

ATTENTION to URLs & EXTENSIONS

When you search on the Internet, it pays to notice the URL addresses, and especially the 3 letter extensions at the end of every address!  These can tell you a lot about who is sponsoring the website you plan to visit.  For instance:

whitehouse

http://whitehouse.gov

XXPromo_FINAL

http://whitehouse.com

 

are two VERY different websites! (.com is a porn site)

There are more extensions now than there used to be, but you actually still see .com, .org, .gov and .edu more than any other URL extensions. Let’s look at those. The first two don’t give as much information about the web-owner as you might think.:

 

.com = commercial; an open registration – anybody can get this extension

.org = OFTEN non-profit organization, but it may be registered to ANY company or group; an open registration

 

.gov = governmental entity (may be local, state, federal, tribal government in U.S.)

.edu = post-secondary educational organization,  not k-12, but it does not matter if it is for-profit; higher education in U.S. Must be regionally accredited

 

If you want to know more about WHO is behind the website you are using, which is usually a good idea, look for a tab or link that is often labeled “About Us,” or something similar. You may have to explore a bit to locate it.  The question to ask yourself before relying on any website is WHY would they have invested the time and expense to create and maintain this website?  It costs money to hire a web developer to create a website, and often costs money to host a site.  What is the motivation for the developer? Even if they have an “ax to grind,” you may still find the website useful.  You may simply have to keep in mind the biases and motivations of the web developer! Sometimes they are truly generous people who want to share their expertise, but sometimes, they are trying to influence the public’s ideas.

What is the URL extension for a government website:

 

 

What two URL extensions give the least information about the web developer?

 

  1. __________

 

 

  1. __________

 

 

 

What is the extension for a post-secondary institution in the U.S.?

 

 

 

Just a bit of information about international websites.  You will notice the URL includes a 2 letter code that designates the country, the “country code.” An example might be the portals for the Saudi Arabian or Japanese governments (both in English):

https://www.saudi.gov.sa/wps/portal/saudi/home/

http://www.japan.go.jp/

A handy list of these codes is at NASA, in alphabetical order by code:

https://goes.gsfc.nasa.gov/text/web_country_codes.html

 

 

CLASS QUIZ/PRACTICE:

Read & Write Citations

Roe v. Wade, 410 U.S. 113 (1973)  (explain the cite):

 

 

 

Write the citation for a decision in the case where Ernesto Miranda sued the United States, published in volume 384 of the United States reporter at page 436, and decided in 1966.

 

 

 

Understanding sources of law:

What are the 3 branches of government in the U.S?

 

 

 

Which branch of government produces statutes?

 

 

 

Which law Latin phrase means that U.S. courts tend to follow previous court decisions?

  1. Res judicata
  2. Stare decisis
  3. Mens rea
  4. Caveat emptor

 

What would be one or more good websites for finding federal law?

 

 

Research Skill Building:

Locate a recent Supreme Court decision regarding same-sex marriage (hint: use Google).

 

 

Locate information on the statute and Constitutional amendment that instituted Prohibition.  Be ready to tell how you did this.

 

 

 

Use any of the recommended websites to find federal laws about whether a medical marijuana shop would be criminal.  You don’t need to answer the question of whether or not it would be criminal, only locate laws that would help you answer the question.  Be ready to tell how you did your work.

 

FINALLY,

HOW TO THINK ABOUT YOUR LEGAL PROBLEM, AND PREPARE TO RESEARCH

Thinking clearly and carefully about a legal issue will result in much better outcomes for legal research.  You may be helped to read a bit about the topic, and starting with a secondary resource is always a great idea.  There are 2 kinds of materials:

1. Primary law – the statutes, court decisions or rules created by the government;

2.  Secondary law – materials that explain and point to the primary law.

I recommend to my students and to you, start with secondary materials wherever possible!  It locates, possibly reprints, and usually explains that law for you.  It may pull together several kinds of law in one place. What could be better?  Reading a bit of this may help you pinpoint or refine your question, and can certain speed up your search.

Let’s say that you have a nephew who has a problem landlord. Maybe they are having problems with the landlord not taking care of the apartment when building issues arise and are pointed out to them, like maybe the furnace conks out in January.  Maybe the landlord is even worse, and comes barging into the apartment without calling or knocking, because he is nosy or concerned about your nephew abusing the property.  What can your nephew do if he lives here in Massachusetts?

Try using Google just to see about landlord tenant law in MA.  A lot of material pops up.  Use your new skills to notice the URL extensions on the results you get…  You can choose higher quality results by selecting the materials that are offered by the Massachusetts state government.  You may even have retrieved Massachusetts General Laws Chapter 186, which is the chapter dealing with landlord tenant law. But let’s not jump into the statutes yet. Let’s read some background first to get some help thinking about our nephew’s two problems:  furnace fixing and barging into the apartment without knocking.

At Tenants Rights and Responsibilities, Mass.gov has provided a very user-friendly pamphlet that outlines in layman’s terms both the rights and responsibilities of tenants in our Commonwealth.  http://www.mass.gov/ocabr/docs/tenantsrights.pdf

The text may alert you that you probably need to find out from your nephew about what sort of lease he signed (if any).  However, immediately under Tenant’s Rights, you will find that the landlord may enter to inspect the premises but must be reasonable and arrange ahead with the tenant.  It notes the statutes on which these rights are based. and suggests that your nephew could get a temporary restraining order from his local district court to keep his landlord from barging in without notice.

As to the furnace issue…  the following  page, 9, under Habitability Rights, explains that the landlord must provide heat, at least 68 degrees in the day hours and 64 degrees at night.  Again, the booklet includes citations to the law.  At page 11, under Tenant Remedies, you will locate information on the circumstances under which a tenant may properly withhold rent and use it to pay for repairs.  There is further information on protection from retaliation from the landlord, including protection from eviction.

This single booklet is probably enough to move forward to locate the statutes and regulations to complete the research job for your nephew. The booklet pulls together in one place the relevant statutes and regulations affecting a tenant with an abusive landlord.  But there are a number of other choices that popped up, some others from state government, one or two from agencies that assist tenants and one from a publisher, NOLO, that produces self-help legal books.  If your nephew were in Chicago, you may not be nearly so fortunate.  Sometimes, it is a matter of what has been posted to the web!  The other side of the coin, is that Illinois law is not so supportive for tenants, though both Chicago and Evansville have special city ordinances that give local tenants more rights.

It helped that Google was quick to locate your answers — lots of people have looked for similar problems!  It also helped that this blog prompted you a bit with terms that helped Google help you.  Do you think you would have come up with the same terms?  You probably would have, or something similar.

 

ASKING FOR HELP – TRIAL COURT LIBRARIES & STATE LIBRARY

Occasionally, it becomes harder to choose a good term. That is when being able to guess what to read become really important.  Never hesitate to ask for help.  I will do my best to advise you. But any citizen of Massachusetts is also entitled to ask for help with legal research problems at our public law library, the Trial Court Libraries.  These are located in nearly every courthouse.  See http://www.mass.gov/courts/case-legal-res/law-lib/  They also have a very useful website that includes excellent, user-friendly links that lawyers as well as the public use frequently.   But you can get a card and use these libraries, including the books and asking librarians questions. You can ask them questions by email or phone as, as well.  The State Library is another public resource.  Located in the State House, it also has librarians who will assist the public, and another excellent website: http://www.mass.gov/anf/research-and-tech/oversight-agencies/lib/   Visit their “digital collections” to locate materials online.