JURI4072 Class 10

Unit 4 |

Primary Law

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Weeks 10 & 11 - Administrative Law Basics & Regulations

Info on Ga Bar's Own Comittee

The Ga Supreme Court has formed a new committee tasked with, "assessing the risks and benefits of the use of Generative Artificial Intelligence (AI) on the courts and to make recommendations to ensure that the use of AI does not erode public trust and confidence in the judicial system." The group, known as the AI and the Courts Committee, will serve until June 2025. The Committee consists of a number of judges from various judicial divisions & counties, court administrators, a representative of a public defender group, and one Georgia attorney. Read more here.

Click the button to read Law.Com's article: Cedra Mayfield, AI and the Courts' Committee Launched in Georgia, LAW.COM (Oct. 22, 2024).

October 22, 2024

Ad Hoc Gen AI Committee formed by Ga Judiciary

Weeks 10-11 Objectives

• Describe administrative regulations and the rulemaking process
• Search efficiently for controlling administrative regulations, executive orders, agency decisions, and advisory documents
• Be able to utilize the 3-step research process to effectively answer a research question
• Demonstrate the ability to find a secondary source, use advanced search techniques, and locate then validate/update prumary law

Search Methods

Admin Law: What & Why?

Our Hierarchy

Regulatory Publications

Rulemaking

Sources of Law

Reminder of Research Process

Class Menu

Validation

Regulations Practice

The Research Process: Steps 2 & 3

Statutes & Treaties

Constitution

Regulations

Secondary Sources

Restatements

Case Law

Most Authoritative Least Authoritative

Where are we in our hierarchy?

SCOTUS struck down Chevron in July 2024 in the Loper decision, weakening agencies' ability to interpret law

1775

1933

1946

1981-2024

In recent times, agency power and creation has expanded and been scaled back depending on political party in power

FDR's New Deal created many more agencies, expanding gov't. in size and scope

Truman signs the APA, creating uniformity & more accountability

Agencies have existed since founding of U.S., e.g. USPS and Customs

Brief Timeline of the Administrative System

Sources of Administrative Law

+INFO

+INFO

+INFO

+INFO

Types of Administrative Authority

• Anything else product by agency
• Can be a variety of docs based on work of agency
• Ex. include: info. for public, data, reports, manuals

• Pub'd by agencies for the public and/or practitioners
• Provide insight into how certain situtions will be treated
• Provides official policy

Other Publications

Guidance Documents

• Quasi-judicial proceeding
• Rulings interpret regs
• Trial and appeal boards
• Must exhaust all admin remedies to seek JR

• Primary authority
• Delegated power
• Implements legislation practically
• Drafted by experts with public input

Agency Decisions

Regulations (rules)

Regulatory Publications

• Notices of proposed rulemakings (NPRMs)
• Proposed rules
• New final rules
• Notices
• Presidential papers & proclamations
• Executive Orders

Cite as: (volume) __Fed. Reg.__ (page) (date of issue) (only when not yet codified)

• Published daily, as regs are promulgated
• Contains:

Federal Register

Anatomy of a Rule in the Federal Register

Cite as: _ C.F.R. _ (Title, Part/Section)(Year)e.g. 36 C.F.R. § 2.15

• Titles 1-16 revised January 1;
• Titles 17-27 revised April 1;
• Titles 28-41 revised July 1;
• Titles 42-50 revised October 1

Code of Federal Regulations

• Codification of all final regs
• Published annually, in quarters

• Arranged into 50 topical titles

All final rules in section

Part # & Name (Regulatory area)

Rule & subpart that starts or continues on this page

Title of C.F.R. i.e. Topic and Chapter, i.e. Agency

Name of rule & subpart

F.ed. Reg. cite for rule

F.ed. Reg. cite

U.S.C. Sec.

Anatomy of a Rule in the Code of Federal Regulations

*Fastcase official publisher, also online

*Officially pub'd by Lexis and online

Final rules codified in:

• Official Compilation of Rules and Regulations of the State of Georgia
• Organized by agency; Updated at least once every 2 years (per Ga. A.P.A.)

Cite as: Issue # Ga. Gov't Reg. pg # (LexisNexis mm yyyy)

Cite as: Ga. Comp. R. & Regs. rule # and subsection

State Rules - Georgia

Proposed rules appear in:

• Georgia Government Register (pub'd monthly and continuously updated online);
• Organized by activity type (.e.g. notices, rulemaking, E.O.s, etc.)

Where & How to Find a Rule

State > Westlaw, Lexis, BLaw; For GA rules > rules.sos.ga.gov, Fastcase, Lexis, Westlaw

CFR

eCFR (unofficial)

Govinfo.gov (official)

Lexis+

FR

Office of the Federal Register

Bloomberg Law

Westlaw Precision

Where to find rules --

*Remember that advanced searching (Boolean, fields and segments) is always available and will help you find statutes and secondary sources first

By Finding Aid

By Secondary Source

By Statute

By Citation

The FR and the C.F.R. has finding aids available to locate rules by topic or law

Do a filtered or a topic search to search for a practice manual or treatise

Each rule cites to its authority (statute);- Use citing refs or Context & Analysis

Simply plug in the full citation to the regulation

Locating a Regulation

Validating Regulations

• Regulations use the same citator signals as cases
• On Westlaw, most of the time you'll need to select > history > validity OR the citing references (flags are not on most regs)
• On Lexis, select the signal on right or click "Shepardize"

KeyCite vs. Shepard's Signals

1. Check currentness on rule if using Westlaw/Lexis
2. If not, check the bottom of the rule for the source
1. Note the Fed. Reg. issue/date when this rule was last updated
2. Go to the Fed. Reg. on Govinfo.gov
3. Look at each subsequent Fed. Reg. issue (since the FR credit citation you found) and see if the rule has been changed in any later promulgation

To update a C.F.R. rule:

Updating a Regulation

Quiz Yourself!

HYPO

You have recently started a new job practicing immigration law! You decide to familiarize yourself with the laws and regulations governing immigration as well as the organization of the Code of Federal Regulations (C.F.R.) and the Federal Register (Fed. Reg.). Your client, Zofia, is 30 years old and in good physical and mental health with no cognitive disabilities. Her application for naturalization was denied (after the agency appeal process) by the USCIS for failure to adequately demonstrate the ability to speak English. The interviewer said she mumbled some non-responsive English words/expressions in response to questions. You decide to use Westlaw to research the law concerning the English language requirements for naturalization. Let's use the indexes for both the U.S.C. (C&A) and C.F.R. and we will also update our rule.

What section is most relevant?

Browse > A-Z > C > CFR Finding Aids

8 CFR 336

8 C.F.R. 235

8 C.F.R. 312

Find a relevant rule regarding naturalization & language requirements. Go to the subject index of the C.F.R. on Govinfo.gov

QUESTION 1

Title of U.S. Code referring to Aliens & Nationality

Title of Code of Fed Regs - referring to agency

Title of Code of Fed Regs - referring to Aliens & Nationality

Most of these rules seem to start with '8.' What does this number refer to?

QUESTION 2

Go to Citing References, filter to regs

Go to bottom, find the authority section cite

Go to bottom, find FR cite

Go to this rule in Lexis or Westlaw. If you wanted to find some official background info on this rule, where would you go?

QUESTION 3

Source citation in rule

Enabling law

Authority citation in rule

Where does USCIS derive its authority to create such this specific rule?

QUESTION 4

8 U.S.C. § 1443

8 U.S.C. § 1103

8 U.S.C. § 1423

Now go to the rule's authority section.What statute is it administering?

QUESTION 5

8 C.F.R. 312

Finally, let's double check our authority. Go to the Parallel Table of Authorities on Govinfo.gov What C.F.R. citation is next to our statute?

QUESTION 6

Regulations Practice

Attorney Vinny Gambino has been practicing law in Georgia for six years and primarily handles criminal cases. Recently, Vinny has been hoping to draw in more clients and expand his practice. He starts advertising his services as including probation services. To seem more legitimate and esteemed, and to distract from his lack of experience in this area, Vinny adds the seal of Georgia to his ads.

My Cousin Vinny

Regulation Searching Practice

He is now being charged with false advertising under O.C.G.A. § 10-1-421. Vinny, a friend of ours from a previous internship, has sought out our advice.

During the trial in a recent criminal law case, the opposing counsel, seasoned attorney Jim Trotter III, discovers the that Vinny's client has used his services. He looks up the ad and see the seal on it.

My Cousin Vinny

Cont'd.

Note what you searched/how you got to your answer for each

My Cousin Vinny

• Using Westlaw - Find a relevant rule by statute
• NEXT –
• Using Lexis - Find the background info on this rule
• NEXT –
• Using Ga. Rules & Regulations site - Find the same rule
• NEXT –
• Using Westlaw - Update and validate this rule

Find a relevant rule using the following methods:

End of Materials

Guidance Documents

These state what the official policy of an agency is in certain sitatutions They are not primary auth. and don't have weight of regs UNLESS it functions like rulemaking

• Types of guidance varies according to agency purview
• E.g. Technical Advice Memoranda by the IRS

Use the index in the C.F.R. (Westlaw, Lexis, Govinfo), Go to Govinfo.gov, select Browse > C > CFR Index & FInding Aids: there is an agency index, subject index, AND Parallel Table of Authorities

Other Agency Publications

Generally these provide information to the public on procedures, laws overseen by agency, data related to mission, research related to mission, etc. E,g, Circulars by the Copyright Office, Environmental Reports by the EPA, Manuals by the IRS, etc.

Only in FR, not in CFR

*Gives info on purpose of rule, why made, provisions of rule, historical background or issues, etc.

Input your citation in the search bar OR filter to the compilation or collection and then input the citation

Comments information for public

Agency Decisions

• Many agencies provide a method of reviewing its actions for the public
• Not required by the APA unless stated in enabling legislation
• Similar to the regular court system
• (Initial Review =Trial; Review Board = Appellate)
• Must exhaust all admin. remedies to seek judicial review in court
• Publications vary (online, reporter, not at all)

Subsection

Rule #

Publication Name

Ga. Comp. R. & Regs. 125-2-3.04

*You should use the year only if you are citing to a specific version of a rule, e.g., one since amended or repealed

Subsection

Rule #

Publication Name

Ga. Comp. R. & Regs. 125-2-3.04

Cite as: Ga. Comp. R. & Regs. rule # & subsection

Cite as: Name of rule, (volume) __Fed. Reg.__ (page) (date of issue) (only when not yet codified)

When rule will go into effect

Final Rule

Gov't. umbrella department

Type of rulemaking

Promulgating agency

Full name of rule

C.F.R. codification sec.

Navigate to the statute, choose either Citing References or Context & Analysis > then regulations (Westlaw) OR choose Other Citing Sources and filter to Regulations (Lexis)

Lexis b/c official publisher

Issue #

Month & Year of issue

Page #

Publication Name

258 Ga. Gov't Reg. 27 (LexisNexis Oct. 2022)

Lexis b/c official publisher

Issue #

Month & Year of issue

Page #

Publication Name

258 Ga. Gov't Reg. 27 (LexisNexis Oct. 2022)

Cite as: Issue # Ga. Gov't Reg. pg # (LexisNexis mm yyyy)

FCC makes rules and establishes review board to implement law; later FCC has authority over 1996 Telecommunications Act too

Legislation establishes an agency to monitor and enforce wire and radio communications law(s) = FCC

In 1934, Congress passes the Communications Act of 1934 (Pub. L. 73–416)

• Agencies can only be created by an act of Congress = enabling laws
• Enabling legislation provides parameters of agency's authority and its mission
• Congress funds (or defunds) each agency
• If Congress makes another law related to agency's mission, it will also give rulemaking authority over to agency e.g. below:

Enabling Legislation & Authority

EPA makes rules regarding surface water treatment protocols

Congress delegates rulemaking authority to Environmental Protection Agency (EPA)

Congress passes Clean Water Act (Pub.L. 92-500)

Info

Info

Info

Final rule is codified & pub'd in Code of Federal Regulations

Agency publishes final rule in Fed. Reg. with effective date

Comment period closes, agency reviews comments and makes changes

Comment period opens, public submits input

Agency drafts rule, pub'd as NPRM or PR in Federal Register

There are different types of rules > formal, informal, emergency, interim, direct final, etc.

Rulemaking Process

Agency is created (enabling legis.) OR agency receives authority to make rules to implement law

Agency Creates Rule

Not able to foresee all circumstances, lack expertise, gaps in laws must be filled, so assigns to agency

Congress Delegates

Only Congress has power to make laws (legislative power)

Congress Enacts Law

How do Agencies Create Law?

Rulemaking Authority

Year of code you are using

Code of Federal Regulations

Section & Part = Rule & Subsection

Title = Topic

6 C.F.R. § 2.15 (2024)

Cite as: _ C.F.R. _ (Title, Part/Section)(Year)

Do a filtered search by practice area (Boolean), or simply select the practice area and select Secondary Sources (Westlaw) or Secondary Materials (Lexis). Then run a Boolean search within, or use the TOC or index (if available).

Page #

Activity

Date of issue

Volume and issue #