JURI4072 Class 10

Weeks 10 & 11 -Administrative Law Basics & Regulations

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Primary Law

Unit 4 |

Ad Hoc Gen AI Committee formed by Ga Judiciary

October 22, 2024

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

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.

Info on Ga Bar's Own Comittee

The Ga. Bar formed its own Special Committee on Technology, AI, Tools, Resources and Legal Obligations to explore, "...how the Georgia Rules of Professional Conduct and Bar policy should consider 'legal practitioners' use of artificial intelligence and make recommendations to its Board...and the Supreme Court."

RegulationsPractice

Validation

Class Menu

Reminder of Research Process

Sources of Law

Rulemaking

Regulatory Publications

Our Hierarchy

Admin Law:What & Why?

Search Methods

• 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

Weeks 10-11 Objectives

The Research Process: Steps 2 & 3

Where are we in our hierarchy?

Most AuthoritativeLeast Authoritative

Case Law

Restatements

Secondary Sources

Regulations

Constitution

Statutes & Treaties

The highest "law of the land" -- all other laws fall under the Constitution and must comply with its terms. This is the same at the state level.

Laws made through the legislative process, and by a legislative body, to implement the terms of the Constitution.

Rules made to implement legislation at the practical level, made by federal and state agencies through delegated authority from the legislature.

Law made through the judicial process -- judge made decisions created through precedence and interpretation of laws.

Summarizes "black letter law" synthesized from case law across jurisdictions. Covers common law topics only. Very persuasive when primary law lacking.

Any source that describes, interprets, analyzes, or comments upon an area of law. Persuasive only, and certain types carry more weight than others. This is any source that is not primary law - some are more authoritative than others.

Brief Timeline of the Administrative System

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

Truman signs the APA, creating uniformity & more accountability

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

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

1981-2024

1946

1933

1775

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

Sources of Administrative Law

Regulations (rules)

Agency Decisions

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

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

Guidance Documents

Other Publications

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

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

Types of Administrative Authority

+INFO

+INFO

+INFO

+INFO

Regulatory Publications

Federal Register

• Published daily, as regs are promulgated
• Contains:

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

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

Anatomy of a Rule in the Federal Register

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

• Arranged into 50 topical titles

Code of Federal Regulations

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

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

Anatomy of a Rule in the Code of Federal Regulations

U.S.C. Sec.

F.ed. Reg. cite

F.ed. Reg. cite for rule

Name of rule & subpart

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

Rule & subpart that starts or continues on this page

Part # & Name (Regulatory area)

All final rules in section

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.)

State Rules - Georgia

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

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

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.)

*Officially pub'd by Lexis and online

*Fastcase official publisher, also online

Where & How to Find a Rule

Where to find rules --

W

S

Westlaw Precision

Bloomberg Law

B

Office of the Federal Register

FR

Lexis+

Govinfo.gov(official)

eCFR (unofficial)

G

CFR

L

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

• Federal Register
• C.F.R.

• Federal Register
• C.F.R.

• Federal Register (1936-)
• C.F.R. (1997-)

Locating a Regulation

2

3

4

Simply plug in the full citation to the regulation

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

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

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

1

By Citation

By Statute

By Secondary Source

By Finding Aid

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

Validating Regulations

KeyCite vs. Shepard's Signals

• 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"

Updating a Regulation

To update a C.F.R. rule:

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

Quiz Yourself!

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.

HYPO

8 U.S.C.A. § 1423

8 C.F.R. § 312.1

QUESTION 1

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

8 C.F.R. 312

8 C.F.R. 235

8 CFR 336

Browse > A-Z > C > CFR Finding Aids

What section is most relevant?

QUESTION 2

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

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

Title of Code of Fed Regs - referring to agency

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

QUESTION 3

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

Go to bottom, find FR cite

Go to bottom, find the authority section cite

Go to Citing References, filter to regs

QUESTION 4

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

Authority citation in rule

Enabling law

Source citation in rule

QUESTION 5

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

8 U.S.C. § 1423

8 U.S.C. § 1103

8 U.S.C. § 1443

QUESTION 6

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

8 C.F.R. 312

Regulations Practice

Regulation Searching Practice

My Cousin Vinny

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.

Cont'd.

My Cousin Vinny

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.

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.

Find a relevant rule using the following methods:

• 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

My Cousin Vinny

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

End of Materials

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

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

Guidance Documents

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

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.

Other Agency Publications

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

Only in FR, not in CFR

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

Comments information for public

• 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)

Agency Decisions

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

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

Publication Name

Rule #

Subsection

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

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

Publication Name

Rule #

Subsection

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

Final Rule

When rule will go into effect

C.F.R. codification sec.

Full name of rule

Promulgating agency

Type of rulemaking

Gov't. umbrella department

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

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

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

Publication Name

Page #

Month & Year of issue

Issue #

Lexis b/c official publisher

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

Publication Name

Page #

Month & Year of issue

Issue #

Lexis b/c official publisher

Rulemaking Authority

How do Agencies Create Law?

1

Congress Enacts Law

Only Congress has power to make laws (legislative power)

Congress Delegates

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

Agency Creates Rule

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

2

Rulemaking Process

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

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

Comment period opens, public submits input

Comment period closes, agency reviews comments and makes changes

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

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

Info

Info

Info

3

2

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

Congress delegates rulemaking authority to Environmental Protection Agency (EPA)

EPA makes rules regarding surface water treatment protocols

1

3

Enabling Legislation & Authority

• 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:

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

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

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

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

6 C.F.R. § 2.15 (2024)

Title = Topic

Section & Part = Rule & Subsection

Code of Federal Regulations

Year of code you are using

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).

Volume and issue #

Date of issue

Activity

Page #