Advanced Legal Research: Day 2 - Administrative Law, Treaty Research, and Methodology
Foundations of Administrative Agencies and the Enabling Statute
Administrative agencies serve as sections of the Executive Branch and are most frequently established by the Legislative Branch to enforce or implement specific legislation. These agencies function across federal, state, and local levels of government. At the federal level, agencies are created by Congress or the President through an enabling statute designed to address specific societal or legal issues. In Arkansas, agencies are established by the General Assembly or the Governor, typically via enabling statutes; notably, the Transformation and Efficiencies Act of 2019 (Act 910) reorganized the Arkansas state government into fifteen distinct agencies. The enabling statute is a foundational document that creates the agency, identifies its scope of authority by defining what conduct it can regulate, articulates its specific purposes and goals, and grants the necessary power to implement the statute. Agencies typically possess three distinct categories of power: rulemaking, which allows them to promulgate rules in a legislative capacity; adjudication, which allows them to decide disputes, prosecute matters, and award benefits in a judicial capacity; and investigative power, which allows them to collect information and issue guidance documents in an executive capacity.
Federal Administrative Law: Regulations and the Rulemaking Process
A regulation is a type of primary authority promulgated by an agency acting in its rulemaking capacity. It shares the appearance of a statute and must strictly conform to the parameters set by the enabling statute. An example of a federal citation for such authority is . The most prevalent form of informal rulemaking is known as Notice and Comment Rulemaking, which is governed by the Administrative Procedure Act, found at . Proposed federal regulations are published in the Federal Register (FR) and on individual agency websites, while final regulations are compiled in both the FR and the Code of Federal Regulations (C.F.R.). Primary sources for accessing these include govinfo.gov, Regulations.gov, FederalRegister.gov, various agency websites, and commercial databases like HeinOnline, Westlaw, and LexisNexis.
The structure and Application of the Code of Federal Regulations
The Code of Federal Regulations (C.F.R.) contains regulations currently in force and is organized topically into 50 titles, mirroring the structure of the United States Code. Key titles include Title 7 for Agriculture, Title 26 for the Internal Revenue Service (IRS), Title 29 for Labor, and Title 38 for Veterans' Benefits. While the C.F.R. is republished annually on a quarterly basis, the electronic version (e-CFR) at ecfr.gov provides the most current text, though it is not considered the official version. Research into regulations is typically triggered when an annotated code refers to the C.F.R., when secondary sources lead to regulatory material, or when the legal area is highly technical, such as banking, securities, immigration, health care, tax, or environmental law. Beyond regulations, agencies issue decisions through advisory opinions, formal adjudications, and informal adjudications, some of which may be appealed to a court of law.
Federal Executive Orders and Arkansas Administrative Law Fundamentals
Executive Orders at the federal level are issued and signed by the President and must be published in the Federal Register. These orders are compiled in Title 3 of the C.F.R., and a President maintains the authority to revoke, modify, or supersede their own orders or those of their predecessors. In Arkansas, administrative law is primarily governed by the Arkansas Administrative Procedure Act (APA), located at The APA defines "Agency" to include boards, commissions, departments, offices, and other authorities of the state government. Under , a "Rule" is defined as an agency statement of general applicability and future effect that implements, interprets, or prescribes law or policy. "Rulemaking" is defined by as the process for formulating, amending, or repealing such rules. Unique to Arkansas are three agencies created by constitutional amendment: the Arkansas Game & Fish Commission (Amendment 35), the Arkansas State Highway Commission (Amendment 42), and the Judicial Discipline & Disability Commission (Amendment 66).
Arkansas Rulemaking Procedures and Legislative Oversight
The Arkansas APA requires state agencies to file all adopted rules with the Secretary of State, who then publishes The Arkansas Register. This publication contains copies of proposed or emergency rules, financial impact statements, notices of adoption, amendment, or repeal, and the official reasons and summaries for proposed rules. The official version of state rules is the Code of Arkansas Rules (as of January 1, 2025), which can be found via the Secretary of State website or subject compilations on Westlaw and Lexis. Legislative oversight is provided by Arkansas Constitutional Amendment 92, implemented by , which mandates legislative review of rules before they take effect. The Legislative Council, supported by the Bureau of Legislative Research, conducts these reviews. Furthermore, an Executive Order issued on January 10, 2023, requires all state agencies to submit proposed rules to the Governor for approval before they reach a legislative committee. This order also established a "two-for-one" rule whereby agencies must submit two rules for repeal for every one new rule presented.
Regulatory Interpretation and Executive Documents in Arkansas
Act 517 of 2019 mandates a narrow interpretation of rulemaking authority in Arkansas. Agencies must limit their rulemaking to what is absolutely necessary for their statutory duties and ensure rules are consistent with legislative intent. Arkansas agency decisions can be found through Westlaw, Lexis, or specific agency websites like the Workers' Compensation Commission or the Arkansas Securities Department. The Arkansas Attorney General issues non-binding advisory opinions to the Governor, prosecuting attorneys, General Assembly members, and state boards or commissions. The State Agencies Department provides legal counsel to these agencies under . Other executive documents in Arkansas include Executive Orders (addressing management or law implementation), Clemency grants, and Proclamations honoring organizations or events, all available on the Governor's website.
International and Treaty Research Frameworks
Global legal research involves International Law (governing national governments and Intergovernmental Organizations), Foreign Law (the law of other individual countries), and Comparative Law (the comparison of different legal systems). Intergovernmental Organizations (IGOs) like the UN, EU, NATO, and WTO are created by treaty and possess international legal status, including specific rights and duties. The world contains various legal systems, including civil law, common law, customary law, religious law, and mixed systems. According to Article 38 of the International Court of Justice (ICJ) Statute, the sources of international law include international conventions or treaties, international custom (consistent conduct of nations accepted as law), and general principles recognized by civilized nations, with judicial decisions and scholarly writings serving as subsidiary sources.
Treaty Classification and the United States Ratification Process
A treaty is a formal, written agreement between countries that carries legal significance both domestically and internationally. Under Article VI of the U.S. Constitution, treaties constitute part of the supreme law of the land and hold the same status as federal statutes. The Vienna Convention defines a treaty as a written international agreement governed by international law. Treaties may be titled as Conventions, Charters, Protocols, Covenants, Agreements, Declarations, or Accords. They are categorized as Bilateral (between two states) or Multilateral (among multiple states). Key vocabulary includes "entry into force" (becoming effective), "accession" (joining after the initial signing), "ratification" (formal approval), "reservation" (qualifying how a treaty applies), and "signatories" (parties who signed). The U.S. treaty-making process involves six steps: 1. Negotiation authorization by the Secretary of State, 2. Signing by a representative, 3. Submission to the Senate by the President, 4. Study and report by the Senate Foreign Relations Committee, 5. Senate approval by a majority, and 6. Proclamation of entry into force by the President. Executive Agreements, which do not require Senate approval, are also used and have a similar effect to treaties.
Methodology and Resources for Treaty and Legal Research
Treaty research follows a 3-step process: finding the authoritative text, determining if it is in force and identifying parties or reservations, and interpreting the provisions through commentaries or travaux préparatoires. Major sources include the Treaties and Other International Acts Series (TIAS), Treaties in Force (TIF), and the United Nations Treaty Collection. Specialized commercial resources include the CISG Database, UNILEX, UNCITRAL, and GLOBALEX. Broadly, legal research methodology requires identifying rules, finding resources to analyze them, and applying that knowledge to client advocacy. The Hoffman strategy involves five steps: 1. Analyzing facts/framing issues, 2. Consult secondary sources, 3. Examine primary sources, 4. Ensure research is up-to-date, and 5. Organize info. The Steenken & Brooks strategy involves: 1. Learning specifics, 2. Defining scope, 3. Constructing search queries, 4. Gathering primary authorities, and 5. Analyzing/updating.
Fact Analysis, Search Strategies, and the Updating of Authorities
The initial step of fact analysis utilizes the Reporter's Questions: Who (parties/entities), What (facts/legal issues), Where (jurisdiction), When (temporal relevance/statute of limitations), and Why (remedies/damages). Identifying a legal theory involves moving from a broad area of law to specific concepts and their elements. Secondary authorities, such as treatises, restatements, and legal encyclopedias, are used to refine search terms and issues. When searching for primary authority, the controlling jurisdiction should be searched first, with statutory issues starting at statutes and case law issues at cases. Final steps involve expanding and validating research using tools like KeyCite on Westlaw or Shepard's on Lexis to ensure authority remains good law. Research is considered incomplete until every authority is reviewed and the specific question presented is answered.