Reference Question of the Week

Old Executive Orders

Question: I need to find the cite to a Presidential Executive Order from 1863. I had found it referenced in an article, but my professor said I need to have a cite to the real thing.

Answer: Usually I love Presidential Executive Orders because they are published so many places and are so easy to find. They are very easy to find in Title 3 of the C.F.R., the Federal Register, and U.S.C.C.A.N. Additionally some proclamations and orders issued under specific authority of a statue are also published in the United States Code. Unfortunately, the C.F.R. and Federal Register didn’t begin publication until 1936. USCCAN bound volumes have reprinted all executive orders and proclamation since 1943. It is very unlikely that the authorizing statute, much less the proclamation, is still in force and therefore still in the U.S.C. So where do we find one that old? Proclamations, but not executive orders, back to 1846 are printed in Statutes at Large, so we looked in the Statutes at Large, and sure enough, what she wanted wasn’t really an executive order, it was a proclamation, suspending the writ of habeas corpus.

On May 10, 1861, President Abraham Lincoln issued Proclamation No. 7 of 1863, 12 Stat. 1260 (1863) in which he suspended the writ of habeas corpus in parts of Florida. On March 3, 1863, the 37th Congress enacted Chapter 81, 12 Stat. 755, which allowed the president to suspend the writ of habeas corpus during the rebellion. Then, on September 15, 1863, he issued Proclamation No. 7 of 1863, which suspended the writ of habeas corpus throughout the United States.

When Capitals Count

Question: I’m having trouble finding portions of the new Massachusetts Individual Health Coverage law on Westlaw even though he had a print out that mapped all the bill sections to their respective MGLA chapters and sections.

Answer: We went to MGLA in the stacks to verify that 111M was the name of a chapter. The spine on the volume says it goes up to 111K, but the pocket part contains additional new chapters. I explained that the capital letters are used to add new chapters between existing chapters in the code. 111M was there in the pocket part, where it stated that it won’t be in effect until July 1, 2007. [Note this question was researched in April of 2007 even though I didn't blog it until now.]

To find this on Westlaw we first went to the student’s Massachusetts tab and clicked on the “Find using a template” link under “Find by Citation”. Here we were able to just type in the chapter and section numbers, “111M” and “3”. This took us directly to that section which had a note at the top saying that this section is effective July 1, 2007.

The student asked why he had been unable to find this on Westlaw before. We tried branching down to this chapter using the Table of Contents tree. The last chapter before 112 was 111L, which has been in effect since 2005. I speculated that this chapter doesn’t show up in the tree because it isn’t in effect yet, and that we should check it again on July 1, 2007, to see if it shows up that day.

The student tried to use the “Find by Citation” method using the format we had discovered using the template to find “mgla 111M s 2b”, but got the result “We cannot process this FIND request because this citation may contain incorrect information or because the document is not available on Westlaw.” I had him remove the lower case b from the request and he was rewarded with two different future versions of this section, one that will be effective from July 01, 2007 to December 31, 2007, and one that will be effective January 01, 2008. It seems the lower case b refers to a subsection, rather than an intervening section.

So my new general rule when looking up a statute by citation on Westlaw is to include capital letters, but not those in lower case.

Subject Law Reviews

Question: Where can I get a list of law reviews that publish articles on a particular subject? I’m trying to figure out where to submit my article.

Answer: Eugene M. Wypyski’s Legal periodicals in English contains a Subject Index in addition to its Author and Geographic Indexes. The set contains information about the journals, but once journals are identified the patron should get information about where to submit the manuscript and in what form, from their mastheads. Another book that might have some limited relevance is Author's guide to journals in law, criminal justice, & criminology, edited by Roy M. Mersky, Robert C. Berring, James K. McCue. While this book provides much more detailed information about the submission process, its age (copyright 1979) makes much of it out of date. For example, the only B.C. journal listed is the B.C. Industrial and Commercial Law Review (the old name of the B.C. L. Rev.)

Quasi-regional Reporters

Question: I have this New York state case and I can't find it. It is on Lexis and Westlaw, but it is from 1963 and there is no PDF. It is a low level court, maybe just a trial court decision. I need to look at it for a cite check. Do we have it?

Answer: This case is reported in the New York Supplement. The student had looked in the New York section of the state materials, assuming this was an official reporter. The New York Supplement, like the California Reporter, is really part of the national reporter system. They are offshoots of the North Eastern Reporter and the Pacific Reporter, respectively. Because New York and California are such large states with so much litigation, West Publishing Company decided to only print the cases from their highest courts in the regional reporters, and to print the decisions of their lower courts as well as their highest courts in these new quasi-regional reporters. Some libraries shelve them with the state materials, since they only contain cases from a single state. Others, like us, shelve them with the regional reporters, since they are part of the national reporter system. Either way, a catalog check would have led the student to where this library shelves that set.

What is c.v.s.g.?

Question: What does c.v.s.g. mean? This opinion says a party filed for a writ of certiorari, c.v.s.g.

Answer: Library staff guessed that it meant something like "cert. vacated, something granted," but were wrong! After consulting Bieber's Dictionary of Legal Abbreviations and Westlaw's SCT database without finding the answer, the librarian searched for "c.v.s.g." in the TP-ALL database on Westlaw. There were several articles about Supreme Court procedure with references to CVSG – which means “calling for the views of the Solicitor General.” Mystery solved!

More on Reporting Unreported Decisions

Question: A confused 1L asked about how to find and KeyCite an unpublished case from the SDNY. He knew the names of the parties but didn't know what it means to be unpublished, and was especially confused once he located the case since it has a U.S.P.Q. cite.

Answer: With the names of the parties it was easy to find the case in Westlaw’s DCTNY database. With the case on the screen all that was needed to KeyCite the case was to click on the KeyCite tabs. What was more difficult, was explaining to the student why unreported cases have cites. In addition to its Westlaw cite this case has a citation to U.S. P.Q. (United States Patents Quarterly), a loose-leaf service published by BNA, which reports many "unreported" cases on intellectual property issues.

The student hypothesized that maybe the case didn’t have an official cite, and that was why it was considered unreported. But there is no official reporter for U.S. District Court opinions or even opinions from the U.S. Circuit Courts of Appeals. Unreported decisions of the lower federal courts are those not published in F. Supp. or F. Supp 2d, for the District Courts, and those not reported in F., F.2d, or F.3d, for the Circuit Courts of Appeals. To add an extra layer of confusion, West actually publishes a reporter of "unreported" Circuit Courts of Appeals decisions, called the Federal Appendix.

Unreported decisions issued by the courts are binding on the parties, but can be considered less precedential – even by the issuing court. Some jurisdictions do not allow citation to unreported cases. Recent litigation questioning the constitutionality of prohibiting citation to unreported cases has brought increased interest in this issue. A recent amendment to the Federal Rules of Appellate Procedure, FRAP 32.1, requires all federal circuits to allow citation to unpublished decisions that were published on or after January 1, 2007 (i.e., federal courts may prohibit or restrict the citation of unpublished cases opinions issued before that date).

Is This Appeal Binding or Not

Question: Where can I find decisions of the Massachusetts Appellate Division? Are they binding on the Superior Court? Where can I get an authoritative statement that the Superior Court is not bound by Mass. App. Div. cases?

Answer: As you all know, a party to a lawsuit who believes that a matter of law (either substantive or procedural) was handled incorrectly at the trial court level is usually entitled to an appeal. In Massachusetts we have seven Trial Court Departments: the Boston Municipal Court, the District Court, the Housing Court, the Juvenile Court, the Probate and Family Court, the Superior Court, and the Land Court.

There are two appeals courts in Massachusetts, the Appeals Court and the Supreme Judicial Court. The SJC is the Commonwealth's highest appellate court. The Appeals Court is a court of general appellate jurisdiction. Most appeals from the several Departments of the Trial Court are entered initially in the Appeals Court; some are then transferred to the Supreme Judicial Court, but a majority will be decided by the Appeals Court. The Appeals Court also has jurisdiction over appeals from final decisions of two State agencies: the Appellate Tax Board and the Labor Relations Commission. Opinions of the SJC are found in the Massachusetts Reports and West’s North Eastern Reporter 1st & 2d. Opinions of the Appeals Court are found in Massachusetts Appeals Reports and West’s North Eastern Reporter 1st & 2d.

In addition to the SJC and the Appeals Court, there is an appellate division of each district court and of the Boston Municipal Court for the rehearing of matters of law arising in civil cases, in claims for compensation of victims of violent crimes, and in civil motor vehicle infractions. Any party to a cause brought in the municipal court of the city of Boston, or in any other district court, aggrieved by any ruling on a matter of law by a single justice, may, as of right, have the ruling reported for determination by the appellate division.

The decisions of the appellate division are found in Massachusetts Appellate Division Reports (Mass. App. Div.) and prior to that in Massachusetts Appellate Decisions (Mass. App. Dec.). These opinions are binding within the division from which they were issued and considered highly persuasive in the other District Courts. Decisions of the appellate division can also be appealed to the Massachusetts Appeals Court. Mass. Gen. L. Ch 231: Section 109. As there is no line of appeal from the Superior Court to the appellate division, these opinions are not binding on the Superior Courts, but may be considered persuasive.

This is all made a little more confusing because in some counties a district court judgment on a civil action, even one that has been to the appellate division, can be subject to retrial before a Superior Court jury. During this trial denovo nothing from the original trial is binding, and a whole new determination of facts and law occurs.

None of the books that discuss Massachusetts procedure seem to make this very clear, as far as I can tell. The patron was refereed to Neary, Handbook of Legal Research in Massachusetts, Martindale-Hubbell Directory of State Laws discussion of the Courts of Massachusetts, general treatises on Massachusetts procedure, and the General Laws themselves, to piece together his own argument why the Superior Court should not follow the Appellate Division opinion.

Why Not Check the Catalog

Question: Student had a cite to: Comptroller, Federal Protection and Preservation of Wild and Scenic Rivers Is Slow and Costly (1978) from the GAO.

Answer: This GAO report is too old to be on the web, but we have some GAO reports in microfiche so we went to the Catalog of U.S. Government Publications in our online databases and searched for title, "Federal Protection and Preservation of Wild and Scenic Rivers." to find SuDoc Number GA 1.13:CED-78-96. In our microfiche collection GA 1.13:CED begins with 78-146, just a little after the fiche we need. Wondering if our main library’s collection contained this document we did a SuDoc search and discovered not only that they not only have this in fiche, but also that if we had initially done a title search in the catalog we would have found it immediately.

Why Not Check the Catalog

Law Reviews of the Future

Question: A student working on a source collection was unable to locate volume 85 of the Indiana Law Journal which was alleged to contain two documents referenced by the author of the article the journal was editing.

Answer: Wypyski, Legal Periodicals in English, indicates that current numbering of the Indiana Law Journal begins with volume 1, 1926. That means that the current 2007 volume should be volume 81. The referenced documents were found in the current volume of the Indiana Law Journal at the page numbers provided by the author in Volume 81, Issue 4. It looks as though the volume number and issue number were added together in the original citation, perhaps indicating some confusion by the author or the author’s research assistants about the relationship between issues and volumes.

Bluebook Blues

Message received via e-mail:I was hoping to get some help on a law review article that I'm helping a professor with. I am currently preparing some footnote citations according to Bluebook rules, and a few questions have come up. I hope that these questions make sense and can be answered quickly. [The questions and their answers appear below.]

Question 1. Must supra be used, and if so, when (rule 16.7 says to use it in regard to periodicals, rule 15.9 says it "may" be used)?

Answer: You are correct that these two rules seem contradictory, since one is permissive and the other seems to require the use of a short form. But Rule 15 (permissive use) only refers to non-periodical materials. If you are citing to law review articles, you will need to use the short forms for subsequent citations.

Question 2. If supra is used, and the first note where there is a reference to the work contains two works by that author, how is that situation to be treated? Should the long form be used in the second citation, and then supra in subsequent citations?

Answer: Rule 4.2(b) should come to your aid here. You can build non-confusing short forms for the two articles using the "hereinafter" construction explained there. Use the long form with a hereinafter the first time you cite a source and the short form you invented from then on.

Question 3. Rule 15.4 says that if there is only a single edition, cite by the date (without giving the publisher). However, if there is more than one edition, how can you know if subsequent editions are by the same publisher or a different publisher (the former not requiring the publisher, the latter requiring it as I understand)?

Answer: A good faith search through a union catalog like WorldCat should allow you to conclude there is only one edition if you can't find anything, or give you access to catalog records that will let you know the publishers of the various editions if you find something.

Question 4. Finally, rule 15.3 says that a subtitle is only given for books if it is "particularly relevant." Can you offer any guidance on determining which subtitles are and are not?

Answer: Relevance is in fact a judgment call, but what I usually look for is - does it explain more clearly what the book is about. For example, Richard Posner's new book it called, "Not a Suicide Pact." It is only in the subtitle that you realize the book is about, "The Constitution in a Time of National Emergency." This is definitely one for which I would include a subtitle. On the other hand, "America's Lawyer-Presidents: From Law Office to Oval Office" could easily loose the sub-title without leaving anyone in the dark about the subject-matter of the book.