msll outreach program december 2009, rev’d march 2012 legal research i government structure and...

MSLL Outreach ProgramDecember 2009, rev’d March 2012

Legal Research I

Government Structure and Sources of Law

Maryland State Law LibraryMary Jo Lazun and James Durham

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•Government structure

•Primary sources

•Secondary sources

•Steps in Legal Research

Course Outline


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Law-Making Bodies of GovernmentLR-I


LEGISLATURECongress / General Assembly

JUDICIARYCourts

EXECUTIVEPresident / GovernorAgencies (ex: Department of Education)

Kinds of Law They MakeLR-I


LEGISLATUREStatutes (aka Acts, Laws, Statutes, “Codes”)

JUDICIARYCases (aka Case law, judicial opinions)Rules (aka Rules of Procedure)

EXECUTIVERegulations (aka regulations)

And don’t forget about the

CONSTITUTION

Levels of LawLR-I


FEDERAL

STATEMaryland

LOCALCounty, municipality

Flow of LawUnderstand the steps

Legislative process Introduction Committee work Debate Passage Signing

Judicial process Trial level Appellate level

Executive / Regulatory process Proposal Publication and comments Finalized rule

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Primary Sources

Created by the governmental body itself, i.e. THE LAW:

ConstitutionLegislature: legislation, statutes, codesJudiciary: cases, court rulesExecutive: regulations

Hold the FORCE OF LAW

Basis for legal arguments

Cited in legal filings

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Secondary SourcesLR-I


Describe, analyze, discuss the lawLegal encyclopediasTreatises (aka books)Law reviews and journals

Rarely cited in a legal filing

Constitution

Basis for created law for all federal and state government entities

Some issues of law go directly to the Constitution

Maryland Constitution includes: Oath of Office for elected and appointed persons

Qualifications of judges

Home Rule for Code Counties

Declaration of Rights

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Law from the Legislature

Known usually as statutes (aka statutory law)

First level of primary law

Legislative law is the basis for other primary law:

cases interpret the statutes; regulations implement or carry out

those statutes

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Maryland Legislative Materials

Enacted by the Maryland General Assembly

Pass both chambers and signed by the Governor

Introduced as “bills”; when passed, “acts” or “statutes”

Printed in Laws of Maryland.

After passage, the statutes are broken out topically (codified) and placed into the Annotated Code of Maryland

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Laws of Maryland

“Session Laws”: pre-codified, enacted legislation

Arranged by passage date, published annually

Contains a copy of the exact bill as passed by the General Assembly; text fonts indicate language changes

Useful for in-depth legislative history

Most legislative-based legal research is based on the Code

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Annotated Code of Maryland

Code = statutory language organized by topic (codified)

Annotated = notes with cases and secondary sourcesAid in further research, interpretation and understandingCopyrighted; only available in PRINT or FEE-BASED versions

Two versions, both adopted as official by the General AssemblyLexis (Michie): well-established, more popularWest: published since 2002Annotations varyCode text is the same

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Maryland Code Organization

Article = topical breakdownOlder Code editions (such as the 1957 ed.) used number designations to break up topics

Title = breakdown within each ArticleSubtitle = further breakdown of topics

Section = discrete component often abbreviated

as §

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Annotated Code of Maryland:

Contents and UpdatesMain text

Updates

An updated set has:Pocket partsSupplementsReplacement Volumes

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Finding Aids for the Code

INDEX--print onlyTwo-volume paperbound supplement to full setArticle-specific index at end of each Article

TABLE OF CONTENTS—print and onlineTerminology is criticalIf unsure, scan the TOC for relevant sections

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Citation Format for the Code

Ann. Code Md. Family Law §13-102 (2006 Rep. Vol, 2009 Supp.)

Article Title

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Critical:

ARTICLE NAME and SECTION NUMBER Family Law 13-102

Subtitle

Main Date Supp DateMd. CodeMd. Code Ann.

Local Codes (in Maryland)

23 counties, Baltimore City, other municipalities

Created by ordinances or bills from the County or City Council or the County Commissioners

Local laws apply locallyParkingZoningLandlord-TenantNoise

No local law can conflict with state law

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Law from the Executive

Created by the Executive - Governor and Executive Departments and Agencies

Known as regulations (aka regulatory law)

Regulations implement statutes

Review proceedings are usually referred to as administrative hearings

Authority to make regulations comes from state statute

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Maryland Executive Materials

Written and proposed by Executive Department or Agency

Comment period before finalization

Printed as proposed and final in the Maryland Register

Final Regulations codified in the “Code of Maryland Regulations” - COMAR

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Contains only final regulations Arranged by agency in numbered titles Print copy is “official,” updated annually Online version is unofficial, updated much more frequently

There is no correspondence between the numbers of COMAR articles and the numbers (when they had them) of statutory articles

Each chapter has an Administrative History at the end

COMAR(Code of Maryland Regulations)

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No index to the full COMAR published with the set

Indexes to each individual Title within COMAR at the end of that Title

Lexis publishes Index to COMAR annually

Finding Aid for COMARLR-I


Maryland Register20:22 Md. R. 1734 (1993)

Volume: Issue Register Page (Year)

COMAR09.12.01.02

Title Subtitle Chapter Regulation

Citation Formats for Regulations

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Law from the Judiciary

Case law= common lawInterpretation of statutory lawSet precedentSame force of law as statutory law

Rules of Procedureprocess in the courtscritical primary source

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Maryland Judicial Materials

Maryland has four courts: District (trial court) Circuit (trial court) Court of Special Appeals (intermediate appellate court) Court of Appeals (highest court)

Opinions published for the appellate courts; not usually for trial courts

Only REPORTED OPINIONS have the force of law

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Maryland Judicial Materials:

Court of Appeals

Highest court, from pre-RevolutionAll cases heard by all 7 judgesJurisdiction over:Gubernatorial successionReview of legislative redistrictingDiscipline of judges and attorneys

Chooses cases to hear (petition for writ of certiorari)

All death penalty cases

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Maryland Judicial Materials:

Court of Special Appeals

Created in 1966 (first judges sworn in January 1967)

Must hear all appeals (no cert)13 judges; cases heard by panels of 3; decisions by majority vote

Hears appeals from Circuit Court, Orphans’ Courts, Administrative hearings

Only a small percentage of opinions of the Court of Special Appeals are “reported” and are therefore precedent-setting, or “law”

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Cases (Reporters)

Official versions:Maryland ReportsMaryland Appellate Reports

Opinions published in date order, as they are issued

Published by West since 1984; every opinion now contains “Key Numbers” that match a topical digest system

Alternative “unofficial” print sources of opinions: Atlantic Reporter, West’s Maryland Reporter

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Citation Format for Cases

Figueiredo-Torres v. Nickel, 321 Md. 642, 584 A.2d 69 (1991)

Party names Volume Reporter Page Parallel Cite Year

Md. = Maryland Reports = COA

Md. App. = Maryland Appellate Reports = COSA

Parallel cite = another reporter where the text of the same opinion can be found

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Finding Aid for Cases: Digests

Reporters do not have indexesDigest = books with case summaries, arranged by topic and subtopic

There are digests covering single and multiple jurisdictions; for Maryland cases, use the Maryland Digest

Access is through a subject index: Descriptive Word Index

Update topic using the pocket partEach case summary includes a citation to the full text in a reporter

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Collection of citations to a particular case

Used to: Locate the history of a case Verify reliability of a case as precedent Locate similar cases or texts that interpret or analyze a case

Cases are not static, they can change significantly by subsequent interpreting cases

Primarily used in electronic format (KeyCite, Shepard’s)

CitatorsLR-I


Maryland Judicial Materials:Court Rules

Rules = court procedure time frames for filings and responsesformats for documents filed with the courtsand more

Authority for having Rules is established by MD ConstitutionCOA by statute appoints a Rules Committee to review, revise and write Rules

When proposed and finalized, printed in the Maryland Register

Current Rules in print and on the internet are published as part of the Maryland Code

Rules volumes also contain the Rules of the Federal District Court for the District of Maryland

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Secondary sources are those which are not law themselves, but rather interpret, discuss, analyze, or otherwise discourse upon primary law. They are useful to the researcher for several reasons: Background research on an unfamiliar topic of law Source of citations to primary authorities Suggestions for further approaches to the research

Secondary SourcesLR-I


Brief integrated overview of the law in a topical area (arranged by topic)

Brings together case law, statutory law, administrative law into a single short discussion

Descriptive rather than analytical Very good starting place Access using a word index that accompanies the encyclopedia

Legal Encyclopedias:MLE, CJS, AmJur 2d

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Collection of articles, much like a law review

Individually authored Good case-finding source Topics are more specific and contemporary than encyclopedias

Access through a Descriptive Word Index

American Law Reports (ALRs)

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AKA hornbooks, casebooks, nutshells, textbooks

In-depth scholarly work on a particular topic

Nutshells are more basic overviews of a topic

Citations / annotations to relevant cases and statutory law

Finding aid: law library’s catalog!

TreatisesLR-I


Address very specific, usually “hot” topics Law reviews have traditionally been considered to be the most scholarly of the secondary sources, very citable

Current multitude of this type: law school reviews professional and bar association publications

legal publishers’ newsletters Finding aids:

periodical indexes online databases

Law Reviews and JournalsLR-I


1. Analyze the question or issue.

a. What is the legal and/or subtopic of the question/issue?

b. What words (and their synonyms) would you search or look up in an index to find an answer?

c. Is this topic or issue most likely addressed by the judiciary (cases), the legislature (code) or the executive (regulations) or a combination?

d. Is this issue mostly likely governed by federal, state or local law?

Steps in Legal Research

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2. Use secondary sources as needed for clarification or background

Start with an encyclopedia or treatise

If the area of law is a very narrow one or a significantly new or historical one, check for law review articles

Steps in Legal ResearchLR-I


3. Search for relevant primary authority

Cases: use the digestsLegislative action: use the Code indexExecutive action: use the COMAR index



4. Update all information to current day(unless you are seeking historical information)

Pocket partsBound supplementsKeyCite or Shepard’s



5. Refine your search as neededand STOP!

A return to some of the secondary sources may assist in clarifying your answer

Stop when you have a current answer or when continued research turns up the same authorities repeatedly

SOMETIMES THERE IS NO ANSWER!



6. Ask an expert – a librarian or attorney with more experience in a particular area might see an avenue you missed.



Remember basic civics; placing your question in context will help tell you where to start

Research takes time; be patient, and know when to stop

If you have questions, don’t hesitate to contact your local law librarian!

ConclusionLR-I


msll outreach program december 2009, rev’d march 2012 legal research i government structure and...

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