HARVARD LAW SCHOOL ADMINISTRATIVE LAW RESEARCH

Summer Success: http://libguides.law.harvard.edu/summersuccess Primary Laws 1. 2. 3. 4. Constitution Statutes: Enable rules Case Law: Interpret rules for constitutionality, scope of authority or abuse of discretion Rules & Executive Orders

Secondary Sources 1. Guides to Administrative Law, e.g., http://libguides.law.harvard.edu/administrative 2. Treatises on Administrative Law 3. Treatises on specific practice areas What is Administrative Law 1. Background a. Beginning in 1933, under the New Deal, Congress enacted several statutes creating new federal agencies, which gave rise to an exponential growth in regulations. b. The public needed notice of the regulations that would govern our lives, and courts began to rule that the un-findable regulations were in violation of the right to due process under the U.S. Constitution. c. In 1946, Congress enacted the Administrative Procedures Act (APA), which Defines agency powers, forms and functions Requires rules to be publicly available Requires public participation in rulemaking Creates uniform standards for rulemaking Sets scope of judicial review Requires contact information for agents d. Congress continues to create new agencies, and there continues to be an exponential growth in regulatory actions. Professor Cass Sunstein, formerly the Administrator of the White House Office of Information and Regulatory Affairs (OIRA), was tasked with limiting regulatory redundancy. Professor Jody Freeman publishes on the topic of regulatory coordination. 2. Administrative law mostly revolves around agency activity. However, the White House is also involved in regulatory oversight.
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3. Making money from regulations a. Lawyers working in heavily regulated industries will advise clients on remaining compliant with regulations. b. Lawyers often advise clients on proposed rules. Sometimes this involves keeping ahead of changes in the law, and sometimes it involves legal advocacy, like drafting and filing comment letters. c. Keeping on top of regulations is important. Loose-leaf services like BNA and CCH offer great alerts. Legislation / Administration 1. Legislation Creates statutes which are broadly written, and delegate authority to agencies. 2. Administrative agencies Agencies are experts. They hold meetings, conduct research and issue reports. They write rules based on fact-finding, and create enforcement procedures. Administrative Agencies 1. Agencies derive power from enabling statutes (and Executive Orders). Agencies manage the day-to-day governing of a specific issue or subject. 2. Agencies may be called Board, i.e., National Labor Relations Board Commission, i.e., Securities Exchange Commission Corporation, i.e., Federal Deposit Insurance Corporation Authority, i.e., Tennessee Valley Authority Department, i.e., Department of Transportation Administration, i.e., Social Security Administration Agency, i.e., Environmental Protection Agency 3. Agencies write Rules & regulations: Primary law similar to statutes Licenses: Includes permits, certificates and other permissions Advisory Opinions: Non-binding authoritative interpretation of statutes and regulations Orders: Final disposition of any agency action Decisions: Adjudication of controversies arising from interpretation of regulations 4. Here is an index of federal agencies http://www.usa.gov/directory/federal/index.shtml 5. Agency websites often contain The language of enabling statutes Proposed regulations Comments to proposed regulations
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Final regulations Advisory opinions Agency decisions Reports and studies

Rulemaking Generally 1. Promulgation of a new regulation or a change in a regulation can be initiated from Legislative delegation Congressional hearings and reports Executive Orders and Office of Management & Budget Circulars Agency acting on its own initiative Emergency situations; technological developments; political pressure Federal Advisory Committee recommendations Petitions and informal requests from affected parties 2. Most federal rulemaking is governed by the APA, which requires agencies to Publish a notice of proposed rulemaking in the Federal Register Take comments from interested persons on the proposed rule Publish a final rule in the Federal Register after considering those comments Make the rule effective not less than 30 days after it is published The Federal Register 1. Overview a. The Federal Register is printed 300 days a year, with about 85,000 pages per year. b. For a regulation to be legally effective, it must be published in the Federal Register. c. The Federal Register contains most of the important summary, explanatory and documentary information on a rule. d. "Final Action notices in the Federal Register usually provide discussion of reasons why regulation was adopted. This regulatory intent can be very helpful, and is not found in the Code of Federal Regulations (CFR). 2. Searching for the Federal Register Citation Agency websites / Contacting agency staff by email or phone Source notes from the CFR Full-text keyword searching Federal Register Indexes Citators 1
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Citators allow you to trace citations from one source to another. Thus, once you have a regulation, case, statute, or secondary source, you may use a citator to find additional useful sources. Use a citator to: Update regulations, follow the history of a regulation or locate primary and secondary legal sources that cite a regulation. 3

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3. The Federal Register is organized as follows [Field Searching] Contents and Preliminary Pages CFR Parts Affected in the issue Final Rules & Regulations Proposed Rules Notices Presidential Documents Corrections 4. An entry in the Federal Register may contain CFR Location Regulation Identification Number (RIN) Agency Action, i.e., Final Rule Effective Date Introduction/Background List of Subjects in the CFR Authority, i.e., citation to enabling statute 5. Sample Federal Register citation [Bluebook R. 14] Investment Adviser Performance Compensation, 77 Fed. Reg. 10,358 (Feb. 22, 2012) (to be codified at 17 C.F.R. pt. 275) The Code of Federal Regulations 1. Overview a. The Code of Federal Regulations (CFR) contains only the text of final rules and regulations themselves. b. A Source at the beginning of each CFR part provides the Federal Register citation and date where the part was published. If a particular section was added or amended later, a separate source note will follow that section. c. Each CFR title is divided into chapters which usually share the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas. Large parts are further subdivided into subparts. All parts are organized in sections. 2. Searching for the CFR Citation Agency website Annotated statutes Notes from the Federal Register Full-text keyword searching C.F.R. Indexes Citators

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3. The CFR is organized as follows [Field Searching] Cover and Title: Title topic and number and revision date Table of Contents to each pamphlet Explanation: How to use and update the CFR This Title: Brief description of how the title is organized Table of Contents to each chapter Table of Contents to each part Authority: Citation to the enabling statute or executive authority Source: Provides citations to the Federal Register Cross Reference Note: Provides citations to related CFR parts Finding Aids 4. Sample CFR citation [Bluebook R. 14] 17 C.F.R. 275.250 (2011) 5. Updating the CFR a. The CFR is arranged by 50 titles, similar to the United States Code. b. The first edition of the CFR was published in 1939 containing regulations in force on June 1, 1938. c. Each CFR title is published (in print) once per year according this schedule: Titles 1-16 Revised as of Jan. 1 Titles 17-27 Revised as of April 1 Titles 28-41 Revised as of July 1 Titles 42-50 Revised as of Oct. 1

d. Typically, the CFR is updated online quickly in something like Westlaw, Lexis, Bloomberg, BNA or CCH in addition to the government supported e-CFR. e. Updating the CFR in print is a bit more complicated. Check out a research guide on administrative law for the multi-step process. Finding the Federal Register and CFR 1. The Federal Register and CFR are available in print and online at: Agency website Westlaw / LexisNexis / Bloomberg Heinonline CCH /BNA e-CFR (most updated free online resource) GPO Access (official online source for administrative materials) Regulations.gov

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Agency Decisions 1. Overview a. Administrative agencies act in a judicial-like capacity when issuing decisions that interpret and enforce regulations. b. These decisions are rarely gathered in one place. Some agencies do not publish decisions in any format. 2. Agency website a. Often, agencies will put administrative decisions on their website. b. Under the Freedom of Information Act (FOIA), you may request documents from administrative agencies. 3. Loose-leaf Services (BNA & CCH & Others) a. Most loose-leaf services publish administrative decisions in their subject areas. For older administrative decisions, loose-leafs are often the only source. b. The Bluebook lists the major loose-leaf services in T15. 4. Lexis, Westlaw & Bloomberg a. Lexis, Westlaw & Bloomberg provide access to some agency decisions. 5. Agency Reporter a. Some agencies publish official reports of their decisions, which resemble a standard court reporter series. b. The Bluebook lists the official administrative publications in T1.2. c. You can look up publications in the Harvard catalog, Hollis: http://hollis.harvard.edu/ Executive Orders and White House Documents 1. Overview a. Executive materials are found in Title 3 of the CFR, and include: Executive Orders Proclamations Determinations Letters & memoranda Reorganization plans b. Presidential Documents are found in the back of each days Federal Register.
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2. The White House a. Similar to looking at agency websites, the White House website offers a great amount of information and access to Executive documents. b. Specifically, the Office of Information and Regulatory Affairs (OIRA) carries out several important Executive functions, including reviewing federal regulations, reducing paperwork burdens, and overseeing policies relating to privacy, information quality, and statistical programs. c. The Unified Agenda of Federal Regulatory and Deregulatory Actions is published twice a year, and outlines the administrative actions an agency plans to take in the next six months. 3. To find federal regulatory information, as well as current and past OIRA regulatory reviews, visit http://www.reginfo.gov/public/. HLS Research Help For other sources of information on this or any other research topic, contact the HLS Library Reference Desk or make a time to meet with a librarian: http://asklib.law.harvard.edu/.

Lisa Junghahn, Research Librarian Ljunghahn@law.harvard.edu