By Ashley Ahlbrand • March 04, 2014•Writers in Residence
In my first post in January, I mentioned that several studies have been conducted over the years on the legal research competencies of summer associates and recent law grads. In these studies there are always a few areas of legal research where new hires’ skills tend to be particularly lacking. One of these areas, in almost every one of these studies, is research skills in administrative law. Let’s try and fix that!
Administrative law, generally defined as the area of law pertaining to the work of administrative agencies, is a subject that touches almost every other area of law, and is therefore a critical subject to understand. Given how pervasive admin law is throughout the other areas of legal practice, it may seem surprising that this is so often one of the areas of deficient research skills. Yet most first-year legal research instruction focuses on the big three: cases, statutes, and secondary sources. These are thought of as the essentials that you must know before starting your first summer law job. Administrative law research is generally relegated to advanced legal research courses or librarian-led guest lectures in upper-level seminars and clinics. Unfortunately, these upper-level courses are typically electives, and with so many options in law school curricula, not all students are going to elect to take them.
If you’ve ever been mired down by administrative law research questions (or I have now thoroughly convinced you that you should be panicked about this hole in your legal education - not my intention, I promise!), don’t worry! Administrative law research is still learnable – you just need to know what to look for and where to find it. The rest of this post will cover just that.
What to Look for:
There are two main things you will look for from an agency – regulations and administrative decisions. Both of these are primary authority – they have the force of law and must be followed. Agencies derive their power to create regulations and issue decisions from Congress, through an enabling act. Statutes empowering agencies to govern a particular subject tend be skeletal; the corresponding agency-created regulations and decisions put meat on the bones.
Hopefully, by the time you graduate(d) from law school, you have a pretty solid understanding of the legislative process – how laws are made. The rulemaking process – how regulations are made – is significantly different. There are many detailed descriptions out there, but essentially the agency publishes a proposed rule, and gives a mandated amount of time for public comment (and occasionally public hearings) on the proposal; the agency then takes the comments into consideration and publishes a final rule only if the agency is satisfied that this final proposal addresses all issues raised during the comment period.
For the more visual learner, check out the Reg Map:
In addition to passing regulations, many agencies also serve an adjudicatory function and issue decisions, much like the judicial branch. While each agency’s adjudicatory process can vary, initial decisions are typically presided over by an administrative law judge (ALJ) and can often be appealed to a review board within the agency and then to a federal court. To learn about the adjudicatory role of a particular agency, it is best to go to that agency’s website.
Finally, many administrative agencies also publish other miscellany documents that can be important to your research process. Perusing the agency’s website, you will want to look for documents such as advisory opinions, guidance documents, and other reports and publications issued through that agency.
Where to Look:
The difficulty with administrative law research is that there are so many different places you might have to look. After all, unlike statutes passed by Congress, regulations are passed by a number of different agencies, not one centralized body. The same goes for agency decisions. Fortunately, there are several good (and FREE!) places to begin your search:
Agency websites – I would recommend looking at an agency website as soon as you begin your research. This will give you an idea of what the agency does, how their website is organized, and will help steer you toward the pertinent laws and regulations in that area.
Federalregister.gov – This site is an unofficial electronic version of the Federal Register, and will tell you what proposed and final rules have been published that day, as well as Presidential documents and pertinent current events. You can browse the site by agency or topic to see the latest actions, or search for a specific proposed or final rule. If a proposed rule is in its notice-and-comment period, this site allows you to comment on the rule, by redirecting you to Regulations.gov, also an excellent site to peruse. Finally, you can also create an account for free on this site to “clip” certain rules for later access. The official version of the Federal Register can also be found electronically for free, through FDsys.
e-CFR – if instead of the Federal Register you were hoping to look at the Code of Federal Regulations online, you can do this here. This site will allow you to browse the CFR by title. You can also use tools on the left side of the screen to search the CFR or browse it by agency. The official version of the CFR can also be found electronically for free, through FDsys.
RegInfo.gov – another research portal of the federal government, RegInfo allows you to see a snapshot of the current regulatory activity, including access to documents such as the Unified Agenda, which gives you an idea of the annual regulatory plans of the various administrative agencies.
AdministrativeRules.org – Finally, if you are interested in finding regulatory information for a state agency, this website, by the National Association of Secretaries of State, provides an alphabetical listing of the states, with links to their government websites, administrative codes, daily registers, and their rulemaking manuals. You will find that state administrative law is quite similar to federal administrative law, so be on the lookout for similar documents at the state agency level – rules, decisions, guidance documents, etc. (I would also advise you to see if the particular state agency has a website as well, as many government bodies are increasingly making their publications available online.)
Administrative law encompasses a large body of government agencies, so research in this area can seem like a daunting task. But, as with many research projects, the key is to know what you’re looking for and where best to seek it out. Chances are strong that at some point in your legal career you will be confronted with administrative law questions. My advice is to dive in and start exploring this now, so that you won’t be caught off-guard when that moment arrives.
But of course, the best advice I can give you is this: When in doubt, ask a law librarian! We’re happy to help! And many law libraries, such as the Law Library of Congress, the Law Library at the Maurer School of Law, and Georgetown's Law Library have created handy research guides on administrative law research that you might find additionally helpful.