MSLL Outreach Program December 2009, rev’d March 2012 Legal Research I Government Structure and...
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Transcript of 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
LR-I
•Government structure
•Primary sources
•Secondary sources
•Steps in Legal Research
Course Outline
MSLL Outreach ProgramDecember 2009, rev’d March 201
LR-I
Law-Making Bodies of GovernmentLR-I
MSLL Outreach ProgramDecember 2009, rev’d March 2012
LEGISLATURECongress / General Assembly
JUDICIARYCourts
EXECUTIVEPresident / GovernorAgencies (ex: Department of Education)
Kinds of Law They MakeLR-I
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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
MSLL Outreach ProgramDecember 2009, rev’d March 2012
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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MSLL Outreach ProgramDecember 2009, rev’d March 2012
Secondary SourcesLR-I
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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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MSLL Outreach ProgramDecember 2009, rev’d March 2012
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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MSLL Outreach ProgramDecember 2009, rev’d March 2012
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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MSLL Outreach ProgramDecember 2009, rev’d March 2012
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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MSLL Outreach ProgramDecember 2009, rev’d March 2012
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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MSLL Outreach ProgramDecember 2009, rev’d March 2012
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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MSLL Outreach ProgramDecember 2009, rev’d March 2012
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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MSLL Outreach ProgramDecember 2009, rev’d March 2012
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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MSLL Outreach ProgramDecember 2009, rev’d March 2012
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
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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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MSLL Outreach ProgramDecember 2009, rev’d March 2012
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
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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
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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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MSLL Outreach ProgramDecember 2009, rev’d March 2012
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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MSLL Outreach ProgramDecember 2009, rev’d March 2012
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
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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
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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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MSLL Outreach ProgramDecember 2009, rev’d March 2012
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
MSLL Outreach ProgramDecember 2009, rev’d March 2012
3. Search for relevant primary authority
Cases: use the digestsLegislative action: use the Code indexExecutive action: use the COMAR index
Steps in Legal ResearchLR-I
MSLL Outreach ProgramDecember 2009, rev’d March 2012
4. Update all information to current day(unless you are seeking historical information)
Pocket partsBound supplementsKeyCite or Shepard’s
Steps in Legal ResearchLR-I
MSLL Outreach ProgramDecember 2009, rev’d March 2012
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!
Steps in Legal ResearchLR-I
MSLL Outreach ProgramDecember 2009, rev’d March 2012
6. Ask an expert – a librarian or attorney with more experience in a particular area might see an avenue you missed.
Steps in Legal ResearchLR-I
MSLL Outreach ProgramDecember 2009, rev’d March 2012